S M W v E W M [2019] KEHC 9735 (KLR)

Facts

The appellant and respondent were married in 2006 and had two children. The respondent left the matrimonial home with the children and enrolled them in a different school, while the appellant continued living with the children. The respondent filed a suit seeking legal and actual custody of the children, home clothing, and health, and a monthly payment of Kshs. 6000/- for food, education, and education accessories.

Issues

1. Whether the appellant can have custody of the children and take care of them.
2. Whether the parental responsibility agreement entered before the children officer was oppressive to the appellant.
3. Whether the respondent’s status as a student is such that she cannot maintain the children, as well as pay her fees.
4. Whether the children are suffering by being left with the respondent’s elderly mother who cannot maintain them.
5. If the answer to 3 and 4 is true whether the children should not be placed in the custody of the appellant.
6. Whether the appellant is unemployed and can afford the Kshs.6000/- per month ordered by the trial court.
7. Whether the trial magistrate considered extraneous matters in determining the case.

Reasoning

The court held that the trial magistrate did not err in granting the order for the appellant to pay Kshs.6000/- per month for the upkeep of the 2 children, as the duties, rights, powers, responsibilities, and authority of a parent over a child are defined by law and may change depending on the child's evolving capacities.

Outcome

Appeal dismissed