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

access to the minor. The Plainti was to cater for medical expenses and clothing, while the Defendant was to meet the minor's school fees and school-related expenses. 6. The only issue left unresolved by the mediation was the provision for the minor's food. 7. The Court will therefore rst consider the Partial Settlement Agreement and adopt it as an order of the Court. Thereafter, the Court will determine the sole outstanding issue concerning the minor's food and the appropriate contribution to be made by each parent. Background 8. The Plainti's case is that she and the Defendant were in a relationship from approximately 2011 to 2014, which relationship resulted in the birth of the minor in 2013. Following the breakdown of the relationship, the Plainti states that the Defendant's nancial support became inconsistent. 9. The Plainti has been the minor's primary caregiver. The Children's Ocer's report records that she had previously sought assistance from the Defendant towards the minor's education and medical expenses. The report further records that the minor had been diagnosed with ADHD and required additional support. 10. The Defendant, on the other hand, maintained that he had previously provided assistance towards the minor's welfare but that his ability to provide support was aected by his nancial circumstances and his responsibility towards his other children. 11. The Defendant's Adavit of Means states that he earned a gross monthly salary of Kshs.17,000.00 and that he had obligations towards three other children, including their school fees, clothing and food, as well as rent. 12. The Defendant subsequently led written submissions dated 15th September 2026. He submitted that, following the mediation, the remaining issue was principally food. He maintained that he should continue meeting school fees and school-related expenses, while the Plainti should meet food and shelter expenses while the child remained in her custody. 13. The Plainti was directed to le her submissions by 23rd September 2026 but did not do so. The Child's Evidence 14. The minor was heard in camera. 15. The child stated that he/she was twelve years old and explained that there had been a period when he/ she was not attending school because the mother was unable to meet the school fees. The child stated that the mother worked in a salon and that when the mother went to work, the child remained at home and played with friends. 16. The child also stated that he/she knew the Defendant and expressed a preference to live with him, indicating that life would be better while living with the Defendant. 17. The Court has taken the child's views into consideration. However, the views of the child are to be considered together with all the circumstances of the case and the statutory requirement that the best interests of the child are paramount. The Partial Settlement Agreement 18. The parties having voluntarily entered into the Partial Settlement Agreement dated 5th August 2026, the rst question is whether the agreement should be adopted as an order of the Court. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 2

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19. The law on consent orders is well settled. In Flora N. Wasike v Destimo Wamboko [1988] eKLR, the Court of Appeal held that a Consent Judgment or order has contractual eect and may only be set aside on grounds that would justify setting aside a contract. The principle has consistently been applied by Kenyan courts. 20. Similarly, in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, the Court held that a consent judgment may only be interfered with in circumstances such as fraud, collusion, lack of consensus, public policy or circumstances that would justify rescission of a contract. 21. In the present case, neither party has challenged the Partial Settlement Agreement on the basis of fraud, mistake, coercion, misrepresentation or any other vitiating factor. Indeed, the parties proceeded on the basis that the mediation had resolved all issues except food. 22. The Court therefore nds that the Partial Settlement Agreement is valid and represents the parties' agreement on the issues covered therein. 23. I accordingly adopt the Partial Settlement Agreement dated 5th August 2026 as an order of this Court. 24. The issues of custody, access, school fees and school-related expenses, medical expenses and clothing are consequently settled and are no longer matters for determination in this Judgment. 25. The Court now proceeds to determine the only outstanding issue, namely the provision for the minor's food. Analysis and Determination 26. From the pleadings, evidence, mediation agreement and submissions, the sole issue for determination is: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 nancial circumstances and parental responsibilities of the parties? a) The constitutional obligation of parental responsibility 27. Article 53(1)(e) of the Constitution provides that every child has the right to parental care and protection, including equal responsibility of the mother and father to provide for the child, whether or not they are married to each other. 28. Article 53(2) further provides that the best interests of the child are of paramount importance in every matter concerning the child. 29. These constitutional provisions have been consistently interpreted by the superior courts. 30. In SKN v GMM (Children's Appeal Case No. 3 of 2020) [2024] KEHC 2552 (KLR), the High Court stated that parental responsibility is a joint and equal responsibility and that Article 53(1)(e) requires both parents to provide for their child. The Court further explained that section 114 of the Children Act requires the Court to consider, among other things, the parties' income, nancial obligations, the child's needs, the child's medical condition and the parent's responsibility towards other children. 31. In AK v SMM (Civil Appeal E010 of 2022) [2023] KEHC 25981 (KLR), the High Court similarly recognised that parents have equal responsibility to provide for their children. The Court noted that parental responsibility includes the duty to provide basic nutrition, shelter, water and sanitation, clothing, medical care and basic education. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 3

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32. The minor's food is therefore not a discretionary benet. It constitutes one of the fundamental components of parental responsibility. Food as an aspect of maintenance 33. Section 31 of the Children Act, 2022 denes parental responsibility and expressly includes the duty to maintain a child by providing basic nutrition, shelter, water and sanitation, clothing, medical care, basic education and guidance. 34. Section 113 empowers the Court to order nancial provision for a child by periodic payments or a lump sum. 35. Section 114 requires the Court, when determining nancial provision, to consider all the circumstances of the case, including: a. The income or earning capacity and nancial resources of the parties; b. The nancial needs, obligations and responsibilities of each party; c. The nancial needs and current circumstances of the child; d. Any physical or mental disability, illness or medical condition of the child; e. The manner in which the child is being or was expected to be educated or trained; f. Whether the respondent has previously assumed responsibility for the maintenance of the child; and g. The liability of either parent to maintain other children. 36. In SKN v GMM [2024] KEHC 2552 (KLR), the High Court expressly considered these statutory factors and observed that joint parental responsibility does not mean that the parents must make identical monetary contributions. The responsibility is joint, although the contribution may dier according to the circumstances of each parent. 37. The same principle is illustrated by DKW v EWW (Civil Appeal E023 of 2021) [2022] KEHC 15893 (KLR). In that case, the Court upheld an arrangement under which the father met particular expenses while the mother bore shelter, clothing and miscellaneous expenses. The Court's approach demonstrates that parental responsibility may be apportioned between parents according to their respective circumstances rather than mechanically divided into equal monetary amounts. 38. Similarly, in TMM v JMM [2019] KEHC 7011 (KLR), the High Court considered a maintenance arrangement where the father met school fees, medical expenses and clothing, while the mother provided shelter and food when the children were at home. The Court rearmed that neither parent has a superior right or claim in the exercise of parental responsibility. 39. This principle is particularly relevant here because the parties have themselves agreed upon an allocation of parental responsibilities through mediation. The Defendant is to meet school fees and school-related expenses, while other responsibilities have been allocated to the Plainti. The respective means of the parties 40. The Defendant's Adavit of Means states that he earns a gross salary of Kshs.17,000.00 per month. He further states that he has three other children whom he supports and that his income is used towards school fees, food, clothing and rent. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 4

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41. The Court is required by section 114 of the Children Act to consider these nancial obligations. 42. 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. 43. In SKN v GMM [2024] KEHC 2552 (KLR), the High Court made it clear that a parent cannot simply rely on a claim of inadequate income to escape parental responsibility, but the Court must nevertheless consider the parent's nancial obligations and resources when determining the appropriate contribution. 44. In DMK v FJM (Civil Appeal No. 22 of 2019) [2022] KEHC 12760 (KLR), the High Court upheld a maintenance arrangement in which the father was required to make a monthly contribution towards general upkeep and food, while the mother topped up the amount and met other specied expenses. The Court considered the parents' respective responsibilities and the best interests of the children. 45. The decision is instructive in the present matter because it demonstrates that a food and upkeep order may appropriately be expressed as a monthly contribution by one parent, with the custodial parent making the necessary balance. The amount claimed by the Plainti 46. The Plainti initially claimed Kshs.12,540 per month for food. 47. There is, however, no detailed food budget before the Court demonstrating how the gure of Kshs.12,540 was arrived at. Neither is there evidence establishing that the Defendant has the nancial capacity to meet Kshs.12,540 every month towards food while simultaneously meeting the school fees and school-related expenses to which he has committed himself under the Partial Settlement Agreement. 48. The Court cannot simply adopt a gure because it appears in the prayers. The Court must arrive at a gure that is reasonable, proportionate and sustainable. 49. In EKTM v ECC [2022] KEHC 866 (KLR), the High Court considered the nancial circumstances and responsibilities of the parties when determining maintenance and emphasised the need to consider the statutory factors relating to the parents' nancial resources and obligations. 50. In JW & Another (Minors suing through their mother) AW v MM [2021] KEHC 4161 (KLR), the High Court considered the question of shared parental responsibility for food and clothing and recognised that parental responsibility may be apportioned between parents after considering their respective circumstances. 51. The Court therefore declines to adopt the gure of Kshs.12,540 merely because it was pleaded The best interests of the minor 52. The Court must nevertheless ensure that the child's welfare is not compromised. 53. The minor is twelve years old. Adequate food is essential to the child's health, growth, education and general development. The right to basic nutrition is expressly recognised as part of parental responsibility. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 5

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54. In MOA v HAO [2021] KEHC 12577 (KLR), the High Court reiterated that the best interests of the child are paramount under Article 53(2) of the Constitution and that the responsibility for taking care of a child rests upon both parents. 55. The Court therefore has to strike a balance between two considerations: rst, ensuring that the child receives adequate food; and secondly, ensuring that the nancial obligation imposed upon the Defendant is realistic having regard to his means and other parental obligations. 56. The Plainti remains the custodial parent and therefore has the day-to-day responsibility of feeding and caring for the minor. Her obligation does not disappear merely because the Defendant is ordered to make a nancial contribution. 57. The Defendant, on the other hand, remains under an equal parental obligation to contribute towards the child's maintenance. 58. The appropriate order is consequently one which requires both parents to contribute, with the Defendant making a dened monthly contribution and the Plainti meeting the balance. Plainti's Failure to File Submissions 59. The Plainti was directed to le her submissions by 23rd September ,2026 but did not do so. 60. The Court has nevertheless considered the Plainti's pleadings and the evidence on record. The failure to le submissions does not amount to an admission of the Defendant's position. 61. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal made it clear that submissions cannot substitute for evidence. The same principle was recently reiterated in Attorney General v Mohamed & Another (Civil Appeal E113 of 2022) [2024] KEHC 8474 (KLR). 62. Accordingly, the Court has determined the outstanding issue on the basis of the pleadings, evidence, Children's Ocer's report, the minor's in-camera evidence and the Defendant's evidence of means, rather than treating the absence of the Plainti's submissions as determinative. DETERMINATION 63. Having considered the totality of the evidence and the applicable law, I nd that: a. The parties have voluntarily and substantially resolved the dispute through Court-Annexed Mediation. b. The Partial Settlement Agreement dated 5th August 2026 is valid and has not been challenged on any recognised ground for setting aside a consent. c. The agreement should therefore be adopted as an order of the Court. d. The only outstanding issue is the minor's food. e. Food constitutes basic nutrition and is an essential component of parental responsibility under section 31 of the Children Act, 2022. f. Both parents have an equal constitutional responsibility to provide for the minor. g. Equal parental responsibility does not necessarily require equal monetary contributions. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 6

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64. h. The Court must consider the child's needs together with the nancial resources and obligations of both parents. i. The Defendant has disclosed a gross monthly income of Kshs.17,000 and has obligations towards three other children. j. The Defendant has nevertheless undertaken, under the Partial Settlement Agreement, to meet the minor's school fees and school-related expenses. k. The Plainti remains the custodial parent and continues to have a responsibility to contribute towards the minor's daily needs, including food. On the evidence presently before the Court, I nd that a contribution of Kshs.5,000.00 per month by the Defendant towards the minor's food is reasonable and proportionate. The Plainti shall meet the balance of the minor's food requirements. CONCLUSION 65. The Court's paramount consideration is the best interests and welfare of the minor. 66. The Court is satised that the parties have already made substantial progress in resolving their dispute through mediation. It would serve neither the child nor the administration of justice to reopen matters which the parties have voluntarily settled. 67. The Court therefore gives eect to the Partial Settlement Agreement and connes its determination to the outstanding question of food. 68. The responsibility for food is a joint parental responsibility. The Defendant should therefore make a reasonable nancial contribution, while the Plainti, as the custodial parent, continues to contribute towards the minor's needs. 69. The order made herein is based on the nancial circumstances disclosed in the present proceedings and may be reviewed if there is a material change in circumstances aecting the child or either parent. Disposition 70. Accordingly, and for the reasons set out above, the Court makes the following orders: 1. The Partial Settlement Agreement dated 5th August 2026, entered into by the parties through Court-Annexed Mediation, is hereby adopted as an order of this Court and shall have the force and eect of a judgment and order of the Court. 2. The parties shall comply with all the terms of the Partial Settlement Agreement concerning custody, access, education and school fees, medical care and clothing, which matters are hereby marked as settled. 3. On the outstanding issue of food, the Defendant shall contribute Kshs. 5,000.00 per month towards the minor's food and nutritional needs. 4. The said sum of Kshs. 5,000.00 shall be paid to the Plainti on or before the 5th day of every month, commencing on 5th October 2026 and thereafter on or before the 5th day of each succeeding month. 5. The Plainti shall meet the balance of the minor's food and nutritional requirements while the minor remains in her actual custody. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 7

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6. The Defendant's contribution towards food shall be in addition to and separate from his obligation under the Partial Settlement Agreement to meet the minor's school fees and schoolrelated expenses. 7. For the avoidance of doubt, the order relating to food shall not vary, derogate from or otherwise aect any other obligation voluntarily assumed by either party under the Partial Settlement Agreement. 8. Both parties shall continue to exercise joint and equal parental responsibility towards the minor in accordance with Article 53 of the Constitution and the Children Act, 2022. 9. Neither party shall use any disagreement concerning maintenance or any other dispute between them as a reason to deny the minor food, education, medical care, clothing, access to either parent or any other basic necessity. 10. The parties shall cooperate in ensuring that the minor's welfare, education, health, development and relationship with both parents are safeguarded and that the best interests of the minor remain paramount. 11. Either party shall be at liberty to apply for variation of the nancial orders upon demonstrating a material change in circumstances, including a material change in income, employment, the minor's needs or any other circumstances relevant to maintenance. 12. 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. 30 Days Right of Appeal JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 7TH DAY OF OCTOBER,2026 ............................. L.A. MUMASSABBA PRINCIPAL MAGISTRATE 7.10.2026 In the Absence of parties who had earlier appeared in court today 7th October ,2026 and I directed that the Judgement shall be published on the CTS by close of business today. Court Assistant: Phoebe. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1011/eng@2026-10-07 8

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