Man appeals order to cater for non-biological children after divorce

The questions have emerged in an appeal filed by a man challenging a lower court's decision  compelling him to be paying his former wife a monthly maintenance fee of Sh30,000 as upkeep for two children – one of whom he fathered and the other from his wife’s previous relationship.

The man code-named EKTM and his former wife ECC began living together as husband and wife in 2006. 

Divorce

On November 11, 2016, the marriage was solemnised under the Marriage Act at the Attorney General’s Chambers in Nairobi.

The two, however, separated in December 2018 and formally divorced on September 2, 2020.

Over the period of the couple’s stay together, three children were born. They are MC, born in November 2006, RC born in July 2009 and NCT born in December 2014.  However, of the three children, only RC was fathered by Mr EKTM.

Upon divorce, the woman moved to the children’s court in Nairobi and obtained orders compelling the man to cater for school fees for the first two children as well as their medical expenses.

Senior resident magistrate Georgina Opakasi found that although the man was not the father of the woman's first-born child, he had assumed parental responsibility over the child and, therefore, was required to cater for the child’s education, upkeep and medical needs.

He was also ordered to pay Sh30,000 monthly for the children’s upkeep. The woman was given physical custody, care and control over the children, with the man having access to them on every alternate weekend of the school days and half of the school holidays.

The man had also sought to be granted physical custody of RC (his biological child) and reasonable access. He wanted the former wife to be forced to provide for the schooling and upkeep of the other two children.

During their marriage the couple took a Sh8.7 million mortgage for a house in Athi River, Machakos County, and were jointly servicing the mortgage.

New family

The woman was living there with the children while the man had to seek rented accommodation for himself and his new family.

The magistrate’s court ordered that the woman and the children should continue living in the house whose mortgage the ex-spouses were to service on a 50:50 basis.

The man was aggrieved by the lower court's position that he should assume parental responsibility over a child that was not biologically his.

In the appeal, he says he was also aggrieved that he should solely cater for the school fees and school-related expenses and have limited access to his biological child.

He is also challenging the order on the monthly maintenance fee for the children, on grounds that the magistrate did not properly assess the financial capacity of each party.

He wanted the High Court to temporarily suspend implementation of the order pending the determination of the appeal, saying he cannot raise Sh30,000 monthly.

He told Justice Aggrey Muchelule that the lower court did not consider his means and obligations and was apprehensive his ex-wife would move to execute the order, rendering his appeal nugatory.

The man said he was struggling to pay school fees  and the mortgage, and given that this net salary was Sh83,963 (the gross being Sh306,400) it was difficult to pay the amount. 

He acknowledged that the former wife had taken out a notice to show cause why he should not pay the amount.

But Justice Muchelule declined to stay the children's upkeep order, noting that its suspension  would leave a vacuum and the children would not get upkeep for the duration of the appeal.

The court added that the man failed to demonstrate that he would suffer substantial loss if execution of the lower court's order were allowed.

Justice Muchelule also noted the man had not made any payments towards the children's upkeep since December 2, 2020, when the order was made. The judge directed the parties to file their written arguments within 14 days.

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