HKN v LNW (Civil Appeal E452 of 2022) [2024] KECA 437 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that parents cannot reduce child maintenance by simply reshuffling expenses - only a real change in income justifies a variation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge disregarded the basic legal tenets of equal treatment of the mother and father of a child in making orders under the Children Act and the Constitution
- 2.Whether the learned Judge failed to appreciate the evidence of change of financial circumstances as against the legal threshold to be met in an application for review
- 3.Whether the Judge disregarded Article 53 of the Constitution on equal responsibility of the mother and father to provide for the child
- 4.Whether, in the alternative, the Court failed to consider that actual custody be granted to the appellant if the respondent was unable to bear her part of the responsibility
Key legal issues
#Scope of the Court of Appeal's jurisdiction on a second appeal in children's matters
The Court is confined to points of law only under section 99 of the Children's Act, 2022, and must defer to findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
Section 99 of the Children's Act, 2022 narrowed second appeals to points of law only. The Court adopted the English authority of Martin v Glywed Distributors Ltd, holding that where a right of appeal is confined to questions of law, the appellate court must accept the findings of fact of the lower courts and resist the temptation to re-evaluate them. The mandate is stated in Maina v Mugiria and related Kenyan authorities.
Threshold for review of a judgment under Order 45 of the Civil Procedure Rules
Review is limited to discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason, applied with circumspection; a mere disagreement with a decision is a matter for appeal, not review
Relying on Benjoh Amalgamated Ltd v Kenya Commercial Bank and Menginya Salim Murgani v Kenya Revenue Authority, the Court held that residual review jurisdiction must be invoked circumspectly, and after judgment a court is functus officio save as provided by law. The appellant's grievance was essentially an invitation to sit on appeal on its own decision and reverse it, which review does not permit.
Whether the change in the appellant's net pay constituted a change of financial circumstances justifying variation of maintenance
The apparent increase in net income reflected a change in the mode and nature of expenditure (rent deducted at source becoming cash spent on transport and security), not a change of income warranting variation of the maintenance order
The Court found that the appellant no longer paid rent to his employer but instead used the same income for transport and security, and deductions shifted from direct check-off to direct payment. This was a re-characterisation of expenditure rather than an alteration of earning capacity, and therefore fell outside the parameters of review and provided no basis to disturb the judge's exercise of discretion.
Equal parental responsibility under Article 53 of the Constitution and the best interests of the child
Maintenance of children is a joint responsibility of both parents; the best interests of the child is the paramount consideration and is not dependent on the wishes of either parent
Article 53(2) guarantees every child parental care and protection, including equal responsibility of the mother and father whether married to each other or not. Both courts below took this into account and the Court found no error in their assessment. Because parents in children's matters are often at loggerheads and may use children to settle personal scores, the court must act as ultimate protector of the minors, exercising judicial discretion which a second appellate court should not lightly disturb.
Whether future adjustments to maintenance remain available
The dismissal of this appeal does not deprive the appellant of the option to seek review of the maintenance orders when circumstances genuinely permit
While the appellant failed to establish grounds for review at this instance, the Court expressly preserved the possibility of a future application. At the opportune time and when circumstances permit, the court retains power to make adjustments to maintenance orders in light of changed circumstances affecting the welfare of the children.
Legal principles established
#- On a second appeal under section 99 of the Children's Act, 2022, the Court of Appeal is confined to points of law only and must defer to findings of fact of the courts below
- After passing judgment, a court becomes functus officio and cannot revisit the judgment on merits save as provided by law
- A change in the nature and mode of expenditure, without a change in income, does not warrant variation of a maintenance order
- An appellate court of second instance should exercise restraint in interfering with findings of fact and judicial discretion in matters concerning children
- The responsibility to maintain children is not bargainable depending on a parent's real or perceived intentions; disagreement with a court's conclusion is a matter for appeal, not review
Court orders
#- 1.The appeal is dismissed as unmerited
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Section 99 of the Children's Act, 2022 (second appeal to the Court of Appeal on points of law only); appeal originally permitted under section 80 of the repealed Children's Act, 2001
Relief refused
#Review/vary of the maintenance order requiring the appellant to pay Kshs.17,500 per month to the respondent
The appellant did not establish a change of circumstances or any error meeting the threshold for review under Order 45 of the Civil Procedure Rules; the variation in net pay was a change in the mode of expenditure, not a change of income
Transfer of actual custody of the minors to the appellant in the alternative
No basis established to interfere with the discretion of the Judge below
Costs
No order as to costs - each party to bear their own costs, the matter involving maintenance of children
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, the appeal is unmerited. Owing to the nature of the matter as involving maintenance of children, we see no reason to burden any of the parties with costs. We therefore make no order as to costs.
in the second instance, to the Court of Appeal on points of law only
this Court confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse
it is a general principle of law that a Court after passing judgment, becomes functus oficio and cannot revisit the judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law.
The fact that a party believes that the court should have reached a difierent conclusion or that the decision was erroneous are matters fit for appeal rather than review which is limited in scope.
This in our view amounted to a change on the nature and mode of expenditure from rent to transport and from direct check ofi through the employer to direct payment by the appellant. It did not necessarily amount to change of income to warrant the variation of the order for maintenance.
the survival and best interest of the child. This consideration is not dependent on the wishes of any of the parents but a legal responsibility bestowed upon the parents jointly.
At the opportune time and when circumstances permit, it will always remain open for the court to make adjustments.
Issues in the judgment
#Internal inconsistency in describing the instant appeal: paragraph 19 correctly identifies it as a second appeal, but paragraph 26 refers to the Court as 'an appellate court and of second instance in this case', conflating the position of the first appellate court with that of a second appellate court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JKP v KSC (Civil Appeal E223 of 2024) [2026] KECA 786 (KLR)[2026] KECA 786 (KLR)24 Apr 2026followed
- Mbarak & 4 others v Mikaya (Civil Appeal E058 of 2021) [2024] KECA 637 (KLR)[2024] KECA 637 (KLR)7 Jun 2024followed
Cite this brief
#Cite this brief
Caselaw, "HKN v LNW (Civil Appeal E452 of 2022) [2024] KECA 437 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/437/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.