A Children’s Officer’s report found the children happy and well cared for during visits with the father, supporting continued access.
The High Court in Nairobi has ruled that equal parental responsibility does not automatically require parents to split child-related costs equally, even when both earn comparable incomes.
In a landmark decision concerning separated lovers, the court held that financial contributions must be equitable and proportionate to individual circumstances, rejecting a rigid 50:50 formula. The ruling emphasised that post-separation choices by each parent should also inform financial obligations.
The ruling stemmed from a dispute involving two medical doctors—identified in court papers as Dr JNM and Ms LGM—who married in 2018 and separated in November 2021.
Couple breaking up.
Their conflict escalated after Ms LGM relocated with their two children (aged five and six) from their Kilimani matrimonial home to Ongata Rongai, triggering a contentious litigation at the Children’s Court over custody, access, and school transport costs.
In his case, the father alleged the mother "abducted" the children while he was at work, withdrawing them from school and severing communication. He filed a missing persons report with the police and used CCTV footage to trace their movement.
The mother, however, portrayed her actions as a flight to safety. She stated that she left the matrimonial home to escape violence, mental distress, and psychological trauma allegedly inflicted by the father.
This clash of narratives—framed as "abduction versus escape"—fuelled protracted litigation in both the Children’s Court and High Court.
The father viewed the mother’s move to Ongata Rongai as a unilateral, punitive decision that distanced him from his children and created logistical challenges. The mother, in contrast, maintained that it was a necessary protective measure.
In 2024, the Children’s Court granted joint legal custody, awarded primary physical custody to the mother, and ordered the father to pay school fees, transport costs, medical coverage, and clothing expenses.
The father appealed, contending that the order imposed an unfair financial burden on him and disregarded the principle of shared parental responsibility.
The High Court partially agreed, emphasising that constitutional equality in parental responsibility does not mandate equal financial contributions.
“Shared responsibility does not imply a 50:50 mathematical split, but a contribution proportionate to means,” the court stated.
It noted that both parents were high-earning doctors, with nearly identical monthly incomes—Sh258,646 for the father and Sh265,560 for the mother.
However, the court found that the trial court had placed an excessive financial burden on the father by requiring him to cover nearly all direct monetary costs, while the mother’s contributions were largely indirect.
“Under the trial court’s order, the appellant bears almost the entire direct monetary cost of the minors, while the respondent provides shelter and food when the minors are with her. The respondent currently resides in Nkoroi, in her parents’ home,” narrated Judge Helene Namisi.
Unfair approach
A key issue was school transport. The children attended school in Kilimani, while the mother lived in Nkoroi, Ongata Rongai—a considerable distance away. The trial court had ordered the father to pay transport costs, approximately Sh90,000 per term for both children, based on the school bus rate, even though the mother often used private means.
The High Court deemed this approach unfair, observing that the mother had unilaterally moved the children, and the resulting transport costs were a consequence of that decision.
“While the respondent had the right to move, the consequential cost of that move—specifically the increased transport burden—cannot be wholly shifted to the appellant, especially when he opposed the move and the change of circumstances,” said the court.
The court held that requiring payment at the school bus rate, when no bus was used, amounted to an arbitrary wealth transfer rather than reimbursement of actual expenses. It directed the mother to bear daily school transport costs as part of her contribution to the children’s education.
Milimani Law Courts in Nairobi.
Beyond finances, the judgment addressed broader co-parenting and child-rearing issues. The mother had challenged the father’s access to the children, arguing that they were of tender age and that he left them with “strangers.” The High Court firmly rejected this argument.
It reiterated that the “tender years” doctrine is no longer an inflexible rule under Kenyan law. Citing Article 53 of the Constitution, the court affirmed that children have a right to the care of both parents, regardless of marital status.
The court also recognised the role of extended family in African child-rearing, stating that relatives such as nieces and aunts could not be dismissed as strangers.
“The involvement of close relatives like aunts and nieces in caregiving cannot, in isolation, be deemed exposing children to strangers. Labelling blood relatives as strangers to deny a father custody is a mischaracterisation that this Court rejects,” the judge noted.
The court took judicial notice of the African social context, where the extended family plays a crucial role in child-rearing and referenced its decision on the principle of Ubuntu and the African Charter on the Rights and Welfare of the Child.
The mother’s allegations of negligence against the father were dismissed for lack of medical evidence. A Children’s Officer’s report found the children happy and well cared for during visits with him, supporting continued access.
In its final orders, the court upheld joint legal custody, confirmed primary physical custody with the mother, and preserved the father’s alternate weekend and shared holiday access.
The father will continue paying school fees and related expenses, while each parent will provide clothing and medical coverage during their respective custody periods.
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