PAO v JKM

ordering him to pay Kshs.13,000/- in maintenance as well as school fees a sum which was excessive and unsustainable given his nancial ability as compared to that of the respondent’s and that the trial court erred in granting the respondent custody whereas she was the one who instigated the divorce between the parties. 5. The High Court upon considering the appeal partially found in favour of the appellant ordering the parties to jointly pay the school fees of the minors in the ratio 50:50, the appellant to pay the respondent a monthly maintenance of Kshs. 13,000/- and granting the parties joint and equal custody over the minors with the respondent having actual custody. 6. Dissatised with the High Court’s judgment and decree, the appellant is now before this Court, on a second appeal on grounds that: the judge was not impartial as she failed to give directions to the service of the respondent’s submissions despite his requests; the judgment was ambiguous as she had allowed the appeal whilst maintaining all the lower court orders; the judge failed or ignored to address some issues raised in the appeal thus demonstrating that she had a predetermined mind against the appellant, the judge erred in law and fact by giving directions of 50:50 parental responsibility without considering the varying nancial situations of both parties and that the judge erred in law and fact by directing the appellant to contribute Kshs. 13,000 per month in maintenance of the children without considering his nancial inability to meet the same. 7. The appeal was canvassed partially by oral hearing as well as by way of written submissions. At the hearing, the appellant reiterated his assertion that the maintenance of Kshs. 13,000/- ordered by the High Court was too much and that the same ought to be reduced as he could not satisfy the same. In his submissions, the appellant reiterated the averments expressed in his memorandum of appeal as well as in his oral submissions before court. 8. Juxtaposed against these submissions were those made in favour of the respondent to the eect that the instant appeal was an attempt by the appellant to run away from parental responsibility by seeking to only pay school fees which the court ought to frown on and dismiss. 9. This is a second appeal and the law is settled that on a second appeal, this Court is conned to dealing with issues of law only unless it is demonstrated that the courts below considered matters, they ought not to have considered or failed to consider matters they ought to have considered, or that the decision was perverse. We reiterate what was stated by this Court in Charles Kipkoech Leting v Express (K) Ltd & another [2018] eKLR where the Court held thus: “ Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court connes 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. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is conned to questions of law only, an appellate court has loyalty to accept the ndings of fact of the lower court (s) and resist the temptation to treat ndings of fact and law, and, it should not interfere with the decisions of the trial or rst appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1920/eng@2026-09-25 2

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10. In his written submissions, the appellant contends that during the hearing of this matter before the rst appellate Court, before it was concluded he requested to be supplied with a copy of the respondent's submission so as to be able to le supplementary submissions if it could be necessary. However, this did not happen, and it is from this point that the appellant felt that the rst appellate judge was no longer impartial, infact he described the rst appellate judge as passive and that her non-action bridged the evidential gap in favor of the respondent. 11. The appellant laments that although the learned judge stated that she had allowed the appeal in part, she still maintained the lower court orders, thereby ignoring the submissions which could have helped her to arrive on her decision of allowing the appeal in its totality. He is particularly aggrieved regarding the 50:50 parental responsibility order, arguing that he is not in any gainful employment; that his daily earnings as a security guard, is hardly Kshs.20,000 per month; and that in any event, the previous opportunity of being a guard which had a fair pay collapsed, as he was dismissed before the determination of the divorce case. He laments that it is therefore unbearable for him to pay upkeep of Kshs.13,000 per month since he is also paying up the other parenting responsibility. 12. The appellant contends that the learned judge also failed to consider that he took the respondent to school during the subsistence of the marriage and personally carried the entire burden of parental responsibility until she successfully graduated only to be divorced after securing a permanent and pensionable job as an ECD, Nursery school teacher; and laments that he stands to lose all that was paid as school fees, and all that could be necessary until her graduation. That since the divorce has been made absolute, also lost what was paid as dowry yet he has allowed the respondent to stay on his plot with all the minors simply because he wanted to meet them more often and address their needs in the most convenient manner. The appellant submits that the rst appellate judge also failed to address the issue of his security during visitations. 13. The appellant also complains that the issue regarding matrimonial property was never established in the lower court, yet the property which is his sole property that was acquired without any nancial contribution by the respondent. He also argues that the claim that the school going child might miss school fees is completely false and such claim is intentionally made to mislead the court as to the actual facts of the matter appealed. 14. As regards the status of his children, the appellant relies heavily on photographs, and states: “ Let the respondent also demonstrate to the honorable court her percentage contribution towards our child s upkeep for a certain period of time…Attached on page 11 is a photo that was taken during admission of our daughter on the 25th August 2025. During this time, I had personally escorted my daughter to the university (Maasai Mara), a duty she could have carried out considering a fact this was my daughter. I personally made the shopping that was required without even a single cent from her side as demonstrated on the receipts attached to this submission on page 1-9. She was admitted after complying with the university admission requirements.” 15. As regards the respondent's sickness, the appellant describes it as a long outstanding issue even before her ling of the divorce case, and maintains that it is now not his responsibility since the marriage was dissolved; and the respondent had also demonstrated a desire and intention to remarry. 16. In opposing the appeal, the respondent draws from provisions of the Constitution of Kenya and the Children's Act both of which provide that both parents have equal parental responsibility including providing for the children. In this regard our attention is drawn to Article 53 of the Constitution of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1920/eng@2026-09-25 3

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Kenya which dictates that parents have equal parental rights over a child whether or not they are married to each other in the following terms: 1. 17. Reference is also made to section 6(1) of the Children's Act states that; 1. 18. Every child has the right to parental care and protection, which include equal responsibility of the mother and father to provide for the child whether they are married to each other or not. A child shall have a right to live with and to be cared for by his parents. The respondent points out that since delivery of the judgment on the 14th December 2022, the appellant has never contributed even a single cent for the upkeep of the minors. Being aggrieved by the state of aairs, the respondent led an appeal at Nyamira High Court, Civil Appeal No. E002 of 2024, where the learned (Okwany, J.) emphasized Article 53(2) of the Constitution that the interest of minors is paramount, and is a joint responsibility. In urging us to make a nding that the reasoning of both the learned trial Magistrate and the learned rst appellate Judge was above board, the respondent emphasizes that maintenance is an aspect of parental care and is the responsibility of both parents of a child, adding that the provisions of section 94(1) of the Children's Act (the Act) set out the considerations to guide the court when making an order for nancial provisions for the maintenance of a child. These considerations include inter alia: a. The income or earning capacity, property and other nancial resources which parties or any other person in whose favour the Court proposes to make an order, have or are likely to have in the foreseeable future. b. The nancial needs, obligations or responsibilities which each party has or is likely to have in the foreseeable future. c. The nancial needs of the child and the child's current circumstances. She therefore prays that the Court makes a nding that the instant second appeal lacks merit and that the same be dismissed with costs. She therefore prays that the Court makes a nding that the instant second appeal lacks merit and that the same be dismissed with costs. 19. We have considered the appeal, the contending submissions and the law, being mindful of the fact that this is a second appeal in which this Court’s jurisdiction is limited to matters of law only. 20. In the present appeal, the grounds of appeal pleaded by the appellant invite this Court to engage in an exercise of re- analyzing the facts leading up to the decision by the superior court. The appellant admitted as much when the parties appeared before this court on the 16th December 2025 stating that he had diculties in paying the Kshs. 13,000/- ordered by the High Court in its impugned judgment. Combing through the record of the High Court, it is evident that in arriving at its decision, the learned Judge took into consideration the best interest of the minors as well as the principle of equal parental responsibility enshrined in Articles 53 (2) and 53 (1) of the Constitution respectively. To engage in consideration of the appellant’s claim would amount to a consideration of issues of facts which are beyond the jurisdiction of this Court sitting on second appeal. To that extend we are satised that the appellant has not raised substantive issue of law for our consideration. 21. Even if this court were to entertain the allegations of lack of impartiality on the part of the Judge of the High court, the onus is on the appellant to establish the actual bias or grounds of reasonable apprehension of it. Mere suspicion or strong anxieties are not enough to sustain a claim of lack of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1920/eng@2026-09-25 4

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impartiality. In any case, we have gone through the record of the proceedings before the High Court and note that at no time did the appellant seek to be served with the respondent’s submissions. 22. We do not detect a manifestation to suggest that the learned judge considered matters she should not have considered or failed to consider matters she ought to have considered or that the entire decision is perverse. There is no error or misapplication of the law or legal principles, indeed the overriding theme in the entire decision by the 1st appellate court, was purely based on the principle of the best interest of the children. Consequently, we nd no merit in this appeal. It is hereby dismissed with no orders as to costs. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................................... JUDGE OF APPEAL H. A. OMONDI ....................................... JUDGE OF APPEAL L. KIMARU ....................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1920/eng@2026-09-25 5

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