Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedChildren's Case E897 of 2025

EWM (Suing as the Mother and Next Friend of the Minor MH) v SMG

Chief Magistrate's Court (Milimani Law Courts)
7 October 2026
3,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Nairobi court ordered a father to pay KES 5,000 monthly for his child's food, ruling that equal parental responsibility doesn't mean equal money.

What this practically means

#

Executive summary

#
This first-instance children's case concerned the welfare and maintenance of a minor, MH, born on 28th November 2013. The Plaintiff, the child's mother, sued the Defendant, the alleged father, seeking among other reliefs a monthly contribution of Kshs.12,540 towards food, school fees, medical expenses, clothing and shelter. The Defendant initially disputed paternity but undertook to assume parental responsibility upon confirmation, disclosing a gross monthly salary of Kshs.17,000 and obligations to three other children. Following Court-Annexed Mediation, the parties executed a Partial Settlement Agreement dated 5th August 2026 resolving custody, access, education, medical care and clothing, leaving only the provision for the child's food unresolved. The court first applied the settled law on consent orders (Wasike v Wamboko; Brooke Bond Liebig v Mallya) and, no vitiating factor having been alleged, adopted the Partial Settlement Agreement as an order of the Court. On the outstanding food issue, the court held that food constitutes basic nutrition and a fundamental component of parental responsibility under Article 53(1)(e) of the Constitution and section 31 of the Children Act, 2022, but that equal parental responsibility does not require equal monetary contributions. Applying the section 114 factors, the court found no detailed food budget and no evidence of the Defendant's capacity to pay Kshs.12,540, and awarded Kshs.5,000 per month to be paid to the Plaintiff by the 5th of each month, with the Plaintiff meeting the balance. The Plaintiff's failure to file submissions was held not to be an admission. There was no order as to costs, and either party may apply for variation upon a material change in circumstances.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Partial Settlement Agreement dated 5th August 2026 should be adopted as an order of the Court
  2. 2.What order should the Court make concerning the minor's food and nutritional needs, having regard to the child's best interests and the respective financial circumstances and parental responsibilities of the parties

Key legal issues

#
01

Validity and adoption of the Partial Settlement Agreement

Holding

The agreement is valid and adopted as an order of the Court since no vitiating factor was alleged

Reasoning

Relying on Wasike v Wamboko and Mallya, consent orders have contractual effect and may only be set aside on grounds such as fraud, collusion or lack of consensus. Neither party challenged the mediation agreement on any such ground, and both proceeded on the basis that all issues except food were resolved.

02

Whether food is a component of parental responsibility

Holding

Food constitutes basic nutrition and is a fundamental component of parental responsibility under section 31 of the Children Act, 2022 and Article 53(1)(e)

Reasoning

Article 53(1)(e) imposes equal responsibility of both parents to provide for the child whether married or not. Section 31 of the Children Act, 2022 expressly includes the duty to maintain a child by providing basic nutrition, shelter, water and sanitation, clothing, medical care and basic education.

p. 4
03

Apportionment of the food obligation between the parents

Holding

The Defendant to pay Kshs.5,000 monthly towards food; the Plaintiff, as custodial parent, meets the balance

Reasoning

Section 114 requires consideration of income, financial obligations, the child's needs and obligations to other children. The Defendant earns Kshs.17,000 gross and supports three other children, but has undertaken to meet school fees. Equal responsibility does not require identical monetary contributions; the custodial parent's obligation continues.

p. 7
04

Effect of the Plaintiff's failure to file submissions

Holding

The failure is not an admission; the Court determined the issue on pleadings and evidence

Reasoning

Citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, submissions cannot substitute for evidence. The Court considered the pleadings, evidence, Children's Officer's report, the minor's in-camera evidence and the Defendant's affidavit of means rather than treating the absence of submissions as determinative.

p. 6

Legal principles established

#
  • A consent judgment or order has contractual effect and may only be set aside on grounds that would justify setting aside a contract
  • Equal parental responsibility does not necessarily require equal monetary contributions; contributions may be apportioned according to each parent's circumstances
  • A court cannot adopt a maintenance figure merely because it appears in the prayers; it must be reasonable, proportionate and sustainable
  • Failure to file submissions does not amount to an admission of the opposing party's position

Court orders

#
  1. 1.The Partial Settlement Agreement dated 5th August 2026 is adopted as an order of the Court with the force and effect of a judgment
  2. 2.The parties shall comply with all terms of the Partial Settlement Agreement concerning custody, access, education and school fees, medical care and clothing, which matters are marked as settled
  3. 3.The Defendant shall contribute Kshs. 5,000.00 per month towards the minor's food and nutritional needs
  4. 4.The said sum shall be paid to the Plaintiff on or before the 5th day of every month, commencing on 5th October 2026
  5. 5.The Plaintiff shall meet the balance of the minor's food and nutritional requirements while the minor remains in her actual custody
  6. 6.The Defendant's food contribution is in addition to and separate from his obligation under the Partial Settlement Agreement to meet school fees and school-related expenses
  7. 7.The food order shall not vary or affect any other obligation voluntarily assumed under the Partial Settlement Agreement
  8. 8.Both parties shall continue to exercise joint and equal parental responsibility in accordance with Article 53 of the Constitution and the Children Act, 2022
  9. 9.Neither party shall deny the minor food, education, medical care, clothing, access or other basic necessity as a reason for any disagreement
  10. 10.The parties shall cooperate in safeguarding the minor's welfare, education, health, development and relationship with both parents
  11. 11.Either party may apply for variation of the financial orders upon demonstrating a material change in circumstances
  12. 12.There shall be no order as to costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Children Act, 2022 (ss. 31, 113, 114) read with Article 53 of the Constitution of Kenya, 2010

Relief refused

#

Plaintiff's claim for Kshs.12,540 per month towards food

No detailed food budget was produced and no evidence established the Defendant's capacity to pay that figure; the Court awarded Kshs.5,000 instead

p. 5

Costs

There shall be no order as to costs, the matter being a children's matter and the parties having substantially resolved their dispute through Court-Annexed Mediation.

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.

I accordingly adopt the Partial Settlement Agreement dated 5th August 2026 as an order of this Court.
p. 3Adoption of mediated settlement
Equal parental responsibility does not necessarily require equal monetary contributions.
p. 6Apportionment of parental responsibility
The Court cannot simply adopt a figure because it appears in the prayers. The Court must arrive at a figure that is reasonable, proportionate and sustainable.
Assessment of maintenance quantum
The existence of other children does not absolve the Defendant of responsibility towards the minor. Equally, however, the Court must not make a maintenance order which is disproportionate to the means of the parent.
p. 5Balancing competing parental obligations
On the outstanding issue of food, the Defendant shall contribute Kshs. 5,000.00 per month towards the minor's food and nutritional needs.
p. 7Final orders - food contribution
There shall be no order as to costs, the matter being a children's matter and the parties having substantially resolved their dispute through Court-Annexed Mediation.
p. 8Final orders - costs

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "EWM (Suing as the Mother and Next Friend of the Minor MH) v SMG", Case Analysis (2026). Children's Case E897 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.