A Mombasa court suspended an order requiring a man to bear 70 per cent of parental responsibility.
Justice Mugure Thande described the order as punitive to the man, and that it negates the equality principle in parental responsibility.
The woman sought for a declaration that both of them have equal parental responsibility over the two children and their custody, care and control be vested in her.She also wanted the man compelled to contribute Sh105,700 monthly maintenance for the children, obtain medical cover, pay school fees and meet educational expenses for the minors.
The lavish lifestyle of a child should not be equated to their “best interest” and a source of income for the other partner, the Family Division of the High Court in Mombasa has affirmed.
The court suspended an order requiring a man to bear 70 per cent of parental responsibility.
While suspending the directive by a Children’s Court, Justice Mugure Thande described the order as punitive to the man, and that it negates the equality principle in parental responsibility.
The judge said she was satisfied that there is sufficient ground to interfere with and vary the order of the Children’s Court, in so far as the contribution ratio is concerned and the sum payable as maintenance.
“Accordingly, I set aside the order that contribution be at the ratio of 70:30 and the order that the man pay Sh45,500, being his share of monthly contribution. I substitute, therefore, an order that the man shall pay to the woman, on or before the fifth day of each month, the sum of Sh30,000, being his contribution towards the upkeep of the children,” said the judge.
“For the avoidance of doubt, all other orders remain the same. This being a matter concerning the parties’ children, there shall be no order as to costs,” added Justice Thande.
The Children’s Court had directed that the man solely pay school fees and school-related expenses. In addition, he was to cater for the children’s entertainment while with the children and provide clothing on a 50:50 ratio.
Further, he was to pay Sh45,500 per month, being his 70 per cent contribution.
After their marriage collapsed, the woman identified as CM in 2016 court documents, filed the case against the man also identified as DN at the Children’s Court seeking several orders in respect of their children.
The woman sought for a declaration that both of them have equal parental responsibility over the two children and their custody, care and control be vested in her. She also wanted the man compelled to contribute Sh105,700 monthly maintenance for the children, obtain medical cover, pay school fees and meet educational expenses for the minors.
After listening to the case, the Children’s Court in a judgment, granted the woman her request but placed the children under legal custody of both of them. The two were also ordered to retain the children in their respective medical covers and provide clothing for them.
Each party was to cater for the children’s entertainment while with them. The woman was to provide shelter for the children and have actual physical custody, with limited access granted to the man on alternate weekends and half the school holiday.
What angered the man was the directive that he shoulders the larger share of the children’s upkeep yet the woman was also salaried.
He argued before the Appellate Court that parental responsibility is shared equally and that should the punitive directive stand, he would literally remain with nothing as he was servicing two loans. He said the woman misled the court that she undertook a pay cut.
“No explanation was given that she had gotten a pay cut. The woman is not genuine in her claim and is seeking to enrich herself,” says the man.
DN further said it was illogical that he pays school fees of Sh86,900 and buy clothes for the children, take care of medical needs and entertainment, and still pay an additional Sh45,500, for food and upkeep. He pleaded with Justice Thande to disturb the judgment of the Children’s Court as it was exploitative and exorbitant.
The woman, however, argued that parental responsibility though equal, is gauged by the financial muscle of individual parent. She said the trial magistrate was right in arriving at the ratio of contribution because the court considered their income.
She blamed the man for setting a high standards for the children, noting that he gave them a life she could not manage on her own.
“He cannot now deviate from the same as this would cause trauma on the children. I urge the court not to interfere with the discretion of the trial magistrate,” said the woman.
Article 53 of the Constitution provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.