When a couple parts ways, children remain with either the father or the mother. In many instances, the tussle over children’s welfare ends up in court. Often, it is the woman seeking legal backing to lay all the financial burden on the man.
But recent rulings on some child support cases shows the responsibility rests on the two. In a case involving a man of the cloth, the High Court recently included the woman’s responsibility to provide food, shelter and clothing for the child.
Besides suspending warrants of arrest against him, Lady Justice Margaret Muigai directed him to cater for school fees, school expenses, medical care and to pay Sh17,000 monthly for the child’s maintenance.
Certificate of urgency
The clergyman had moved to court under certificate of urgency seeking to suspend execution of a children court’s decision. A warrant of arrest had been issued by the magistrate against him for failing to pay for the child’s upkeep.
In his suit papers, the man stated that he could not afford to comply with the payments because the woman is a person of means and had chosen to harass him, adding that the woman was married.
In another ruling by Justice Kanyi Kimondo on June 27 in Eldoret, he suspended a magistrate court’s interim orders requiring a man to pay school fees, shopping and purchase school-related items for his child. “It is also not lost on me that the respondent is a salaried employee at the Moi Teaching and Referral Hospital. I cannot comment further because the matter is still pending, and, this is an interlocutory appeal,” the judge added.
The man moved to court on grounds that the paternity of some minors belonging to the woman, who had sued him are in question. The court pointed out that both parties had consented for a DNA test over the two minors but the man had not taken it. “However, the second part of the order commanding the appellant to “pay school fees, do shopping and purchase school-related needs for the third minor” is too vague, ambiguous and open to abuse,” the ruling read.
Lawyer Katwa Kigen, who has handled several child support cases, told Saturday Standard that the welfare of a child is the responsibility of both parents and not exclusive for fathers or mothers. “If both parents are working, courts take an approach on the interest of the child by ensuring each of them contribute financially,” he said.
Article 53 of the Constitution provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not. Courts mainly look at a child’s basic needs such as food, education, shelter, health and clothing.
FIDA-Kenya Chairperson Josephine Mong’are agrees that child support is a joint responsibility. “If the court orders a woman to pay part of the money, it must have been persuaded that she has an income that can cater for it,” she said.
She said the government does not have any welfare to cater for children whose parents are unable to pay for their upkeep. “The father and mother cannot go to court to say they are unable to cater for the children. They must demonstrate to the court whatever means of income they have because it is their responsibility to cater for the children.”
Judiciary’s Director of Communication Naim Bilal said it takes about two years to conclude a maintenance case; however, execution processes take several years depending on the parties’ co-operation.
“Most cases are filed by women but few by men. We have had only one such case since 2015,” he added.