DIVORCE, CUSTODY, AND MAINTENANCE

There are various forms of marriages set out in the Marriage Act 2014 and their definitions and also their processes of dissolution1 that which include Christian marriages, Civil marriages, customary marriages, Hindu Marriages, Islam marriages. 2

Under sec 64 of the Act, the parties to a Christian marriage may seek the services of any reconciliation bodies established for that purpose that may exist in the public place of worship where the marriage was celebrated. This process may be undertaken to prevent divorce or to try save the marriage before divorce proceedings can be filed.

GROUNDS FOR DIVORCE OF A CHRISTIAN MARRIAGE

The grounds are dealt with under section 65 of the Act.

    1. If a party to the marriage commits one or more acts of Adultery is the consensual sexual intercourse between a married person and a person of the opposite sex who is not their spouse during the subsistence of a marriage.
    2. The second ground for divorce is cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children of the marriage. Cruelty is conduct of such a character that poses danger to life or one’s health, both bodily and mental health, or conduct which gives rise to a reasonable apprehension of such
    3. The 3rd ground for divorce under Christian marriages is exceptional depravity by the other spouse; this is not explained but depravity consists of severe moral
    4. The 4th ground is that of irretrievable breakdown of the Sec 66(6) of the Marriage Act states that a marriage is considered irretrievably broken down if:
      • a spouse commits adultery; a spouse is cruel to the other spouse or to any child of the marriage;
      • a spouse wilfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
      • The spouses have been separated for at least two years, whether voluntarily or by a decree of the
      • a spouse has deserted the other spouse for at least three years immediately preceding the date of presentation of the petition;
      • If a spouse has been sentenced to a term of life imprisonment or for a term of seven years (7) or more;
      • Where a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical
    5. The 5th ground is Desertion by either party for at least three(3) years immediately preceding the date of presentation of the petition;

Where a petitioner is relying on desertion, 3 factors have to be proved:

    1. The fact of separation. This is an absolute requirement for desertion, i.e. the parties must physically separate. So where the respondent is out of communication or fails to perform matrimonial duties this is not desertion unless there is physical
    2. There has to be Intention of the deserting spouse to remain separated, known as the Animus deserendi which is inferred from words and actions to permanently cease the matrimonial union. Certain intentions will not be inferred where the deserted spouse has consented to the separation .As part of proving the intention therefore the petition must also prove absence of consent in that
    3. Lack of a reasonable or justifiable cause for withdrawing from cohabitation. It must be proved the spouse left without a reasonable

DIVORCE UNDER CIVIL MARRIAGES

Sec 66. (1) Provides that a party to a civil marriage cannot petition the court for separation or divorce unless three (3) years have elapsed since the celebration of the marriage. The court can refer the matter to a conciliatory process agreed between the parties. The petitioner can however proceed to file for separation or divorce even where the conciliation process is ongoing. The grounds for divorce in a civil marriage are set out in sec 66(2) of the Act. The grounds are identical to those applicable for Christian marriages.

The proceedings for separation or divorce under civil marriages may be postponed by the court for not more than 6 months to enable the court to make further enquiries; or for further attempts at reconciliation to be made by the parties to the marriage.

DIVORCE UNDER HINDU MARRIAGE

This is handled under sec 70 of the Marriage Act. The grounds for divorce include;

  • that the marriage has irretrievably broken down;
  • the other party has deserted the petitioner for at least three years before the making of the petition;
  • the other party has converted to another religion;
  • since the celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery;
  • the other party has committed cruelty on the other;
  • The other party has committed exceptional depravity on the

DIVORCE UNDER CUSTOMARY MARRIAGE

Sec 68 of the Marriage Act covers divorce under customary marriages. The parties to a customary marriage may undergo a process of conciliation or customary dispute resolution before the court determines a petition for the divorce. The process of mediation or traditional dispute resolution has to conform to the principles of the Constitution.

The person who takes the parties to a customary marriage through the process of conciliation or traditional dispute resolution is required to prepare a report of the process for the court.

Grounds for divorce in customary marriages

  •  Adultery;
  • Cruelty;
  • Desertion;
  • Exceptional depravity;
  • Irretrievable breakdown of the marriage; or
  • Any valid ground under the customary law of the petitioner

Common customary grounds for divorce in most communities include;

  • Refusal to have sexual relations for no good reason;
  • Witchcraft;
  • Willful desertion;
  • Habitual theft;
  • Incest;
  • Excessive physical cruelty;
  • Failure of the husband to maintain his wife and children
  • Adultery on the part of the wife
  • Impotence on the part of the husband although some communities allow an impotent man to allow his close relatives or friends to have sexual relations with his wife (barrenness of the wife is not a ground for divorce because African Customary Law allows for

Under Section 9 of the Magistrates Court Act the court is entitled to hear claims arising out of marriage or divorce under customary law and the courts are required to determine the cases before them in accordance with the Customary Law of the parties. Normally the courts will insist on reconciliation procedures and it is only after proof that reconciliation has failed that the courts proceed to hear the divorce petition and grant it.

DIVORCE UNDER ISLAMIC MARRIAGES

Sec 71 of the Act states that the Islamic divorce shall be governed by Islamic law. There are two forms of divorce under Islamic Law:

  1. Extra Judicial Divorces
  2. Judicial

EXTRA JUDICIAL DIVORCE

Under Islamic Law, divorce is discouraged and will only be allowed if the conditions are grave and weighty and even so divorce will be the last resort; reconciliation between the parties is encouraged. This reconciliation is provided for; where the conflict originates from the wife, her husband has the right to judge her, consider the wrong she has committed and make a decision. The husband is also supposed to guide her and show her that what she has done is wrong, and that she should not repeat it.

If she repeats her actions, he may then resort to disciplinary action which is in 3 phases

  • He may start by kind exhortations or reprimands where he denies her a few necessities e.g. money.
  • He may then withdraw from the matrimonial bed, however this should be of a temporary nature; and if this fails
  • He may undertake some symbolic beating but this should not be severe. At this stage he has the right to abstain from sex until the wife
  • When there’s a conflict with the husband, the wife has to try and make peace with the husband and try to settle their

If all these fail two arbitrators from both sides are appointed to review the situation and to try and settle the dispute. It is only after this that the parties can then resort to divorce if the arbitration fails.

There are a number of extra judicial divorces that the parties can undertake:

  1. Talak which is the dissolution of the marriage by the unilateral act of the husband;

There are certain conditions to be fulfilled in order to make this divorce complete and valid

  • The husband must be of age;
  • He must be conscious and alert and should not be angry;
  • He should not be intoxicated;
  • He should be free from external pressures;
  • His intention to terminate the marriage must be

On the part of the wife;

  • She should be of age;
  • Must be in a healthy state of mind;
  • She must be in a state of purity; meaning that she should not have had any sexual relations with her husband and should not be

If these conditions are met, the husband may then pronounce the first talak, either in written or oral form and by talak he merely says “I divorce thee”. He can revoke this pronouncement if he changes his mind, forgives his wife and they may resume conjugal cohabitation. If however 40 days have passed and the husband has not revoked his pronouncement and conditions stated still apply, he may then pronounce the second talak.

He still has the option of revoking this pronouncement but if he does not and 40 days elapse and the conditions remain constant, he may then pronounce the 3rd talak. The effect of the 3rd talak is to make the divorce complete and valid and the wife has the option of remarrying. All the time that the talaks are being pronounced she remains in the matrimonial home. Before the wife remarries she has to wait for a period of 4 months or Iddat period and she cannot remarry her ex- husband until she has been married by another man or divorced or widowed. This condition is there so as to ensure that husbands do not divorce their wives recklessly.

Ila Divorce: this is a form of constructive divorce which is effected by abstinence from sexual relations for a period of not less than 4 months. If reconciliation is impossible then the marriage is dissolved.

Zihar: this divorce arises where the husband continuously compares his wife to another female or his mother .The wife may refuse to have any sexual intercourse with him unless he changes and if this fails the marriage is deemed to have been dissolved.

Lian Divorce: this is where a husband suspects that his wife is committing adultery but does not have any proof. He testifies or swears that he is telling the truth and he does so four times and the fifth time he swears that he be cursed if he is lying. The wife on the other hand swears four times that she is telling the truth and the fifth time that she be cursed if she is lying and after this the marriage is dissolved.

Khula: It is initiated by the wife if she feels that she is unhappy with the marriage. She then returns the mahir to the husband and any other marriage gifts that he had given her and the divorce will only be valid where the husband grants her the divorce although he may waive the need for her to return the compensation.

Mubarat; divorce by mutual agreement where both parties desire the divorce. It can be initiated by either party and the wife loses any right she had to get back her dowry but the husband remains liable to maintain the children.

Apostasy: where either spouse abandons the Islamic religion

The High Court has jurisdiction to hear and determine matrimonial causes under Islamic Law where the Petitioner is resident in Kenya. Kadhi’s courts can also hear and determine matrimonial causes where both parties are Muslims.

Where a Kadhi, sheikh, imam or person authorized by the Registrar grants a decree for the dissolution of a marriage, the Kadhi, sheikh, imam, Mukhi or authorized person shall deliver a copy of the decree to the Registrar.3

Section 60 requires that where a court grants a decree of the annulment of a marriage or the dissolution of a marriage, it shall deliver a certified copy of the decree to the Registrar and the Registrar shall register the annulment or dissolution in a register maintained for the purpose. This is in relation to Christian, Civil, or Customary Marriages.

3 Sec 72 Marriage Act

FOREIGN DECREES

Where a foreign court has granted a decree in matrimonial proceedings whether arising out of a marriage celebrated in Kenya or elsewhere, that decree shall be recognized in Kenya if:

  • Either party is domiciled in the country where that court has jurisdiction or had been ordinarily resident in Kenya for at least two years immediately before the date of institution of proceedings;
  • Being a decree of annulment, divorce or separation, it is effective in the country of domicile of the parties or either of

PROCEDURE OF FILING A DIVORCE SUIT IN KENYA

Divorce proceedings in Kenya are commenced by filing a divorce petition. The person filing this document is known as a petitioner. Alternative dispute resolution is recognized in the Marriage Act 2014 as a means of resolving disputes in a marriage before one initiate the process of divorce4 which this procedure must be in conformity with the provisions of the Constitution of Kenya 2010.

This document signifies to the court that a spouse desires to end their marriage which subsequently initiates the process of divorce. 5 The Petition outlines the grounds for divorce and is accompanied by the following documents: –

  1. Verifying Affidavit– this is a legal document that sets out the petitioner reaffirms the contents of the divorce petition that they have brought before the court and which is made by
  2. Notice to Appear– this is a legal document that is served to the respondent to be reminded that they are supposed to appear in court failure to which the case will continue and judgement will be given without their presence.
  3. List of Witnesses and their statements– this is a legal document that sets out the persons that the petitioner wishes to use in the divorce petition that will testify on their behalf and their
  4. List of Documents– this is a legal document that sets out the supporting documents that the petitioner will use in their divorce

4 This majorly applies in Christian and Customary marriages, section 68 and 64 of the Marriage Act 2014

5 Also known as dissolution of marriage, is the process of terminating a marriage or marital union.

Disclaimer: the above listed legal documents are applicable to all cases and are not only restricted to divorce petitions. Samples of the same are shown below.

Once the Petition is filed, it is served together with the Notice to Appear, notifying the Respondent of the case. Once the Respondent acknowledges receipt, he is required to enter appearance and file a Defense and/ or a Cross Petition. 6

A divorce petition shall not be presented in court unless the marriage has existed for more than three years.

6 A cross petition is a petition that which the respondent wishes also to dissolve the marriage.

DIVORCE PETITION SAMPLE.

Republic of Kenya

 In the High Court of Kenya Family Division

Divorce Cause No.              of 2020

 Kasim Rosy……………………………………………………………… Petitioner

vs

Quantum Otonglo………………………………………………….. Respondent

–PETITION–

 To,

The Honorable Judge

The High Court of Kenya Family Division

Nairobi

THE HUMBLE PETITION OF KASIM ROSY OF POST OFFICE NUMBER ……….

KASARANI NAIROBI IN THE REPUBLIC OF KENYA SHOWETH;

i. Particulars of the divorce petition are contained here in numerical order as pleaded by the petitioner

ii. …………………………………..

iii.  …..…………………………………..

DATED at Nairobi this………………. Day of………………………………………………………………………………………… 2020

……………………………………………………………………

Kasim Rosy

(Service of summons to be affected by the petitioner’s offices)

DRAWN AND FILED BY;

 …………………… KASIM ROSY

 …………………… PLAZA, 2nd FLOOR LUCKY ROAD

P.O BOX……………………. 00100

NAIROBI

TO BE SERVED UPON

QUANTUM OTONGLO

NICKS ROAD

Republic of Kenya

In the High Court of Kenya Family Division

Divorce Cause No.              of 2020

 Kasim Rosy……………………………………………………………… Petitioner

vs
Quantum Otonglo………………………………………………….. Respondent

VERIFYING AFFIDAVIT

 

I, KASIM ROSY of Post office Box number of………………… in the Republic of Kenya make oath

and states as follow: –

  1. THAT I am the Petitioner and thus competent to swear this
  2. THAT I do hereby declare that the contents of the petition are true to my personal knowledge.
  3. THAT I have not been an accessory to, condoned, connived at, or conduced to the Respondent’s cruelty (or any other grounds of dissolution of a marital union as set out above) as set out in the
  4. THAT this petition has not been presented or prosecuted in collusion with the Respondent.
  5. THAT there is no suit pending in any court over the same
  6. THAT what is stated hereinabove is true to the best of my knowledge, information and belief.

SWORN AT NAIROBI by the said

KASIM ROSY                                                    )……………………………………..

                                                                                               DEPONENT

On this…………………………… day of…………………………….. 2020

BEFORE ME:

COMMISSIONER FOR OATHS

 DRAWN AND FILED BY:

 

 …………………………KASIM ROSY

………………………… PLAZA, 2ND FLOOR

P.O.BOX ………….

NAIROBI

Republic of Kenya
 

In the High Court of Kenya Family Division

Divorce Cause No.              of 2020

Kasim Rosy……………………………………………………………… Petitioner

vs

Quantum Otonglo………………………………………………….. Respondent

NOTICE TO APPEAR

 To:

Quantum Otonglo

NICKS ROAD.

TAKE NOTICE that you are required within Eight Days (8) after service hereof upon yourself, inclusive of the day of service, to enter an appearance either in person or by an advocate at the High Court Family Division Nairobi, should you think fit to do so, and thereafter to make answer to this petition and that, in default of your so doing, the court will proceed to hear the petition and pronounce judgement, your absence notwithstanding.

This petition is filed and this Notice is issued by

…………………….KASIM ROSY

…………. PLAZA, 2ND FLOOR,

 P. O. BOX……………….. NAIROBI

DATED at Nairobi this………………………………….day of.. 2020 …………………………………………..

DEPUTY REGISTRAR

HIGH COURT FAMILY DIVISION

 

 NOTE; any person that is entering an appearance must at the same time furnish an address of service.

Republic of Kenya

 In the High Court of Kenya Family Division

Divorce Cause No.              of 2020

Kasim Rosy……………………………………………………………… Petitioner

vs

Quantum Otonglo…………………………………………………… Respondent

A.     List of Witnesses.

 

  1. Here is the list of witnesses that the petitioner wishes to use.
  2. …………………………….
  3. …………………………….

DATED this                                               day of                          2020

…………………………… AND COMPANY ADVOCATES

ADVOCATES FOR THE PETITIONERS

B.     List of Documents.

 

  1. Here is the list of documents the petitioner is going to use in the case
  2.  …………………………..
  3. …………………………..

DATED this                                               day of                                                                    2020

…………………………KASIM ROSY THE PETITIONER DRAWN AND FILED BY:

…………………………KASIM ROSY

………………………… PLAZA, 2ND FLOOR

P.O.BOX ………….

NAIROBI

TO BE SERVED UPON

QUANTUM OTONGLO NICKS ROAD

SAMPLE 2 DIVORCE PETITION

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT MILIMANI MILIMANI

COMMERCIAL COURTS

DIVORCE CASE NO.                               OF 2020

DAVID JAMES BONDI……………………………………………………………………………… PETITIONER

VERSUS

CYNTHIA MALEMA…………………………………………………………………………. RESPONDENT

PETITION

The Hon. Chief Magistrate, Milimani Commercial Courts, MILIMANI

The Humble Petition of DAVID JAMES BONDI of P.O BOX 784-50100 -Ikolomani, within Kakamega County in the republic of Kenya showeth:

  1. THAT the Petitioner then a bachelor started cohabiting with the Respondent then a spinster in 2003.
  2. THAT on 2nd June 2005 the Petitioner then formalized the relationship and married the Respondent at the Redeemed Gospel Church, Nairobi County. (Attached herewith is a true copy of the certificate of marriage).
  3.  THAT after the celebration of the said marriage the Petitioner and the Respondent lived and cohabited in the following principal places:

Ruaka- Nairobi County.

  1. THAT during the subsistence of the marriage parties were blessed with one (1) daughter who, Sampale Bondi born in
  1. That both the Petitioner and the Respondent are domiciled in
  1. That since 2009, four (4) years after their marriage the Respondent deserted the matrimonial home and has since been living in Wajir
  2. That since the celebration of the marriage the Respondent has been guilty of adultery, cruelty and

PARTICULARS OF DESERTION

  •   Deserting matrimonial home with no justifiable
  • Deserting matrimonial cause and living in Wajir
  • Failing to return to her matrimonial home since 2009
  1. THAT since 2009 the Respondent has been engaging in adultery and is now married to one Mr. Lakule

PARTICULARS OF ADULTERY

  •  Commiting adultery with one Mr. Lakule
  • Cohabitting with Mr. Lakule
  • Getting married to Mr. Lakule Mposho against the Petitioners will and during the subsistence of the
  1. THAT since the year 2009 the Respondent has treated the Petitioner with

PARTICULARS OF CRUELTY

  •   The Respondent has on several occasions abused and/or insulted the Petitioner in the presence of his parents thus subjecting the Petitioner to a lot of embarrassment, mental anguish and
  • The Respondent has also physically assaulted the petitioner on several
  • The Respondent has a tendency of breaking into tantrum unnecessarily with sole intention of embarrassing the
  • The Respondent has been very unco-operative and all the Petitioner’s attempts for negotiation have been
  1. The above elements of adultery, desertion and cruelty meted towards the Petitioner have become life threatening to him, caused psychological torture and excessive strain on the marriage as a result of which the parties herein have separated and are now living
  2. The marriage between the Petitioner and the Respondent has irretrievably broken down and is beyond
  3. The Petitioner has never be an accessory or connived or condoned the matrimonial offences stated
  4. That there has been no previous proceedings in the matter or in any other court in regard to the matters set out

REASONS WHEREFORE: – the Petitioner prays:

  • THAT the marriage between the Petitioner and the Respondent be
  • THAT the Respondent be condemned to pay the costs of this

DATED at Nairobi this……………………………….day of……………………………………………………………………………………………. 2020.

DAVID JAMES BONDI

THE PETITIONER

 

DRAWN & FILED BY:

DAVID JAMES BONDI

SALAMA HOUSE

P.O BOX 784-50100

KAKAMEGA

 

 TO BE SERVED UPON;

CYNTHIA MALEMA

EAGLE HOUSE, 4TH FLOOR

P.O BOX 67-00100

NAIROBI

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT MILIMANI

MILIMANI COMMERCIAL COURTS

DIVORCE CAUSE NO.                               OF 2020

DAVID JAMES BONDI……………………………………………………………………………… PETITIONER

VERSUS
CYNTHIA MALEMA…………………………………………………………………………. RESPONDENT

VERIFYING AFFIDAVIT

 

I DAVID JAMES BONDI of PO. BOX 784-50100 Ikolomani within Kakamega County do hereby make oath and solemnly state as follows: –

  1. THAT I am the Petitioner herein and therefore competent to make this
  2. THAT I have read through and understood the contents of the Petition filed herein to be true and
  3. THAT the facts deponed herein are true to the best of my knowledge information and belief.
  4. THAT I swear this Affidavit in support of my Petition

SWORN at Nairobi by the said          )

DAVID JAMES BONDI                  )………………………………..

This……..day of………..2020           )                       DEPONENT

BEFORE ME                                      )

COMMISSIONER FOR OATHS

 DRAWN & FILED BY:

DAVID JAMES BONDI

SALAMA HOUSE

P.O BOX 784-50100

KAKAMEGA

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT

MILIMANI MILIMANI COMMERCIAL COURTS

DIVORCE CASE NO.                               OF 2020

DAVID JAMES BONDI……………………………………………………………………………… PETITIONER

VERSUS

CYNTHIA MALEMA…………………………………………………………………………. RESPONDENT

NOTICE TO APPEAR

 

TO: CYNTHIA MALEMA

EAGLE HOUSE, 4TH FLOOR

P.O. BOX 67-00100

 NAIROBI (To be served by Petitioner’s Advocates offices)

TAKE NOTICE that you are required within Fifteen (15) days after the service hereof upon you, inclusive of the day of such service, to enter an appearance either in person or by your Advocate at the Registry at Chief Magistrate’s Court- Nairobi should you think so to do, and thereafter to make answer to this Petition and that, in default of your so doing, the court will proceed to hear the Petition and pronounce judgment your absence notwithstanding.

THIS PETITION is filed and this notice issued by DAVID JAMES BONDI, P.O BOX 784- 50100 KAKAMEGA.

ISSUED at Nairobi this………………………………day of……. 2020

CHIEF MAGISTRATE

 MILIMANI LAW COURTS

 NOTE: Any person entering an Appearance must also at the same time furnish an address of service.

DRAWN & FILED BY:                                                                                                                        TO BE SERVED UPON:

DAVID JAMES BONDI                                                                                                          CYNTHIA MALEMA

SALAMA HOUSE                                                                                                                   EAGLE HOUSE, 4TH FLOOR

P.O BOX 784-50100                                                                                                            P.O BOX 67-00100

KAKAMEGA                                                                                                                             NAIROBI

CUSTODY AND MAINTENANCE.

Under the Kenyan legal system, a child is defined as anyone below the age of 18. Under common Law, a parent was under an obligation to take care of the child during marriage and this obligation was only on the part of the father. The position under common law was changed by statute which has watered down the exclusive rights of fathers over children.

The factors which weakened this paternal preference included an increased focus in children’s welfare as the primary consideration and also with the effects of the industrial revolution, father’s increasingly sought work outside the home while the mothers remained at home as the primary caretakers. The resultant division of family responsibilities influenced custody decisions and the paternal preference was gradually replaced by a maternal preference. This maternal preference was based on the tender years doctrine which was intended to apply to children under the age of six years and was invoked to give mothers custody of children of tender years.

The maternal presumption of custody remained in place for many years and was only recently substituted by the standard of the best interests of the child as per the Constitution 2010 and the Children’s Act.

Best Interests of the Child under this standard, custody decisions are now based on considerations of the child’s needs and interests rather than based simply on the gender of the parent.

DUTIES UNDER STATUTORY LAW

The main statute dealing with children’s matters is the Children’s Act although there are provisions in other Acts including the Penal Code which touch on custody. The Marriage Act empowers the court to make decisions as to custody of children in divorce proceedings and also as to maintenance and education of children. Under the Act, a party applying for a separation order can also be given orders as to the legal custody of the children of the marriage. However the Act doesn’t give details as to how custody is to be determined.

Of particular importance, the Constitution gives equal parental responsibility of the child to both parents regardless of whether they are married or not. Article 53. (1) (e) Constitution states 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.

THE CHILDRENS ACT

This Act was enacted to consolidate all legislation that affects children and to give effect to certain international instruments which Kenya had ratified on the rights of children i.e. the Convention on the Rights of the Child. The Act provides for certain concepts which touch on rights and duties of parents over children.

PARENTAL RESPONSIBILITY UNDER THE CHILDRENS ACT

Section 23 of the Children’s Act defines parental responsibility as all the duties, rights, powers, responsibilities and authority which by law a parent has in relation to the child and the child’s property and in particular the following:

DUTIES

 

  • Duty to maintain the child and in particular to provide adequate diet, shelter, clothing, medical care including immunization, education and guidance;
  • Duty to protect the child from neglect, discrimination and abuse;

MAINTENANCE

Under Section 90 -101 of Children’s Act – the presumption is that maintenance of children is the joint responsibility of both parents and maintenance orders under the Act can be made whether or not matrimonial proceedings have been filed.

In this respect, in order for a court to make a child maintenance order, the court is mandated to consider the financial ability of each parent to maintain the child.7 To this end, courts usually ask both parents to swear an affidavit of means which shows how much the parent earns in a month, vis a vis how much the parent spends. In any case if either parent violates a maintenance order, this is considered contempt of court and one risks jail term.

7 Section 76(3)(f) of the Children’s act no. 8 of 2001

CUSTODY

Insofar as custody is concerned the Act recognizes 3 different types of custody. Under section 81

  • It provides for legal custody and under the Act, legal custody is said to mean those rights and duties in relation to the possession of a child which are conferred upon a person by a custody order; in effect what legal custody does is to confer upon a person the right to make major decision about the child’s health, education and welfare. All these duties and rights are given under legal custody.
  • It also recognizes actual custody and this means the actual possession of a
  • Joint Custody: Joint physical custody because the Act states that the actual physical custody of a child can be shared with one or more

Also implied in that section is sole custody because it is quite possible under the Act for one person to have both the legal and actual custody of a child. Care and control of a child is in respect of a person who is in actual possession of a child but who does not have custody over that child. The Act imposes an obligation on that person who has care and control to safeguard the interests and welfare of that child.

In addition to custody, the court can make certain orders under the Act and these include:

  • Access orders
  • Resident orders (section 114 )
  • Care orders (section 132)

An Access Order requires a person with whom a child is residing to allow the child to visit or to stay periodically with a person named in the order or to allow such person to have some other contact with the child. This is what is referred to as visitation rights in other jurisdictions. One proviso in the Act is that an access order shall not be made in relation to a child in respect of whom there is already a care order in place.

Care orders are given under Section 132 and what they basically do is to entrust the care and possession of a child to a person who is not the parent, guardian or custodian of the child or to an institution which is appointed by the court. This is usually for the protection of the child especially for those children who are in need of care and protection e.g. if they have been exposed to domestic violence, subject to female genital mutilation and so forth.

Residence orders require the child to reside with the person issued the order and also provide for arrangements to be made to facilitate the residence of the child with that person. Such an order will impose certain conditions and define the duration of residence and so forth.

WHO CAN BE GRANTED CUSTODY UNDER THE ACT

Custody can be granted to parents of the child, guardian or it can be granted to any person who applies for custody with the consent of a parent or guardian and that person must have had actual custody of the child for a period of at least 3 months preceding the application.

In determining consideration of custody, the court is required to have regard to certain factors or certain principles:

  1. The conduct and wishes of the parent or guardian of the child;
  2. The ascertainable wishes of the relatives of the child;
  3. Ascertainable wishes of any foster parent or any person who has had actual custody of the child for the last 3 years preceding the application;
  4. Ascertainable wishes of the child
  5. Whether the child has suffered any harm or is likely to suffer any harm if the order is not made.
  6. Customs of the community to which the child belongs;
  7. Religious persuasion of the child;
  8. Whether any other order has been made in relation to the child that is the care order, supervision order, protection or exclusion order and whether that order remains in force
  9. The circumstances of any siblings of the child and of any other children of the

BEST INTEREST OF THE CHILD

Article 53 (2) of the Constitution states that a child’s best interests are of paramount importance in every matter concerning the child. Section 4 (2) and 4(3) of the Children’s Act echoes this. The section further defines best interests of the child to include actions calculated to safeguard and promote the rights and welfare of the child. It is aimed at conserving and promoting the welfare of the child and it is aimed at securing for the child such guidance and correction as is necessary for the welfare of the child.

SAMPLE CUSTODY & MAINTENANCE TEMPLATE

REPUBLIC OF KENYA

IN THE CHILDREN’S COURT AT NAIROBI MILIMANI LAW COURTS

CHILDREN’S CASE NUMBER                      OF 2020

PAULA WHITE (suing as the mother and next friend of REGINALDAH HAWI  a  minor)……………………………………………………………………………… PLAINTIFF

VERSUS

SHELDON WHITE…………………………………………………………………………… DEFENDANT

 
PLAINT (FAST TRACK)

 

  1. The plaintiff is a female adult individual of sound mind and the mother and next friend of REGINALDAH HAWI a minor both residing together in Nairobi within the Republic of Kenya. Her address of service for purposes of this shall be care of M/S PAULA WHITE, Grid House, 10th Floor, Moi Avenue P.O Box 585-00100 Nairobi.
  1. The Defendant is a male adult individual of sound mind residing and working for gain in Mombasa within the Republic of (Service of summons and pleadings shall be effected by the Plaintiff’s Advocate’s offices).
  1. The Defendant is the biological father of the minor Reginaldah Hawi born on 23rd November 2013.
  1. The Plaintiff avers that she cohabited with the Defendant in the year 2012 in Kitengela Nairobi during which period they were blessed with the minor
  1. The Plaintiff states that in the 1st years of the minor’s education, the Defendant was supportive of the minor’s school needs but things changed around third term 2017 when the Defendant started dodging paying school fees and also stopped visiting the Plaintiff and the minor herein to date.
  1. The Plaintiff states that the minor is aged seven and a half (7.5) years and a pupil at Smart Steps Primary within Nairobi
  1. The Plaintiff has been most of time single-handedly providing upkeep for the minor despite the fact that the Defendant is in formal employment as a Human Resource Officer at Digital Experts (K) Ltd earning an estimated salary of over 180,000/= and is therefore capable of paying the minor’s school fees.
  1. The minor’s monthly basic needs and requirements total about Kshs 106,000/= and is made up as follows;
    • School Fees per term                                                                               34,000/=
    • Books, uniform, snacks, and school-related expenses                    15,000/=

Sub- Total                                                                                                                      Kshs. 49, 000/=

ADD other crucial basic needs

  1.  House Rent Kshs                                                                                                                                                   23,000/=
  2. Utility Bills (Water, Electricity, Security and garbage collection)                                                    Kshs.  7,000/=
  1. Food Kshs                                                                                                                                                                10,000/=
  2. Clothing                                                                                                                                                                    5,000/=
  3. House Help Kshs                                                                                                                                                      7,000/=
  4. Medical Insurance Scheme per month Kshs                                                                                                    5000/=

Total                                                                                                                                                                                   Kshs. 106, 000/=

 As a result, the minor’s basic monthly needs and requirements is about Kshs 106,000/= and which amount I claim from the Defendant.

  1. The Plaintiff states that the minor is currently in danger of being sent away from school as fees and school related expenses for the current term has not been paid totaling to 50,000/=.
  1. The Plaintiff states that further, I am currently financially constrained and I am unable to meet all the minor’s basic monthly expenses like food, rent and clothing for the minor due to hard economic
  1. The Plaintiff states that she is employed as an engineer earning a salary of about 100,500/=, she is currently unable to pay all the basic needs of the minor herein due to hard economic times and high standard of living.
  1. The Plaintiff avers that given the circumstances, it is mete in the circumstances that the Honourable court orders the defendant to pay at least Kshs 50,000/= for the minor as interim school fees and school related expenses and subsequently be ordered to pay Kshs. 107,000/= per month upon hearing of this suit as upkeep for the minor
  1. The Plaintiff further states that it is sometimes difficult and a challenge for her to attend to the minor’s school events when they fall due to the nature of my work and it is therefore fair and in the best interest of the minor that the Defendant be compelled to attend to the Minor’s school events when they fall due and further that he regularly visits the minor at appropriate times for bonding.
  1. The plaintiff avers that in breach of his parental duty of care the Defendant has failed and or neglected to support the plaintiff and the
  1. Despite several requests and reminders by the Plaintiff to the Defendant to offer support, the latter has failed and or neglected to do
  1. There is no suit pending and there have not been previous proceedings in any court between the parties concerning the subject matter This Honourable court has jurisdiction to hear and determine this suit.

REASONS WHEREFORE the Plaintiff prays for judgment against the Defendant for;

  1. An order for monthly maintenance in the following terms;
    • School fees                                                            50,0000/= .
    • Basic monthly needs Kshs.                                57,000/=
    • Total                                                                         107,000/=

 An order compelling the Defendant to attend to the minor’s school events as they fall due given the plaintiff’s nature of

  1. Costs of the suit

DATED AT NAIROBI THIS…………………. DAY OF……………………………………………………………………………………….. 2020.

 

 

PAULA WHITE

PLAINTIFF

 DRAWN & FILED BY;-

PAULA WHITE

GRID HOUSE, 10TH FLOOR

MOI AVENUE

P.O BOX 585-00100

NAIROBI

TO BE SERVED UPON;

SHELDON WHITE

DIGITAL EXPERTS (K) LTD

P.O BOX 624

MOMBASA.

REPUBLIC OF KENYA

IN THE CHILDREN’S COURT AT NAIROBI MILIMANI LAW COURTS

CHILDREN’S CASE NUMBER                      OF 2020

PAULA WHITE (suing as the mother and next friend of REGINALDAH HAWI  a  minor)……………………………………………………………………………… PLAINTIFF

VERSUS

SHELDON WHITE…………………………………………………………………………… DEFENDANT

PLAINTIFF’S LIST OF DOCUMENTS

 

  1. Minor’s Birth
  2. Minor’s School Report Card
  3. Minor’s Fees Structure for Smart Steps Primary
  4. Minor’s Demand note for School-related
  5. Treatment Notes from Nairobi and Kenyatta Hospital.
  6. Plaintiff’s Pay
  7. Any other document to be produced with leave of

DATED AT NAIROBI THIS………………. DAY OF……………………………………………………………………………………….. 2020.

 PAULA WHITE. PLAINTIFF

 

DRAWN & FILED BY;-

PAULA WHITE

GRID HOUSE 10TH FLOOR

MOI AVENUE

P.O BOX 585-00100

NAIROBI

 TO BE SERVED UPON;

SHELDON WHITE

DIGITAL EXPERTS (K) LTD

MOMBASA.