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High Court Makes A Landmark Rulling on Divorce

A High Court in Milimani, Nairobi made a landmark ruling on divorce directing that both parents will share the burden of bringing up their children equally.

The ruling is set to have an impact on future divorce cases whereby parents differ on responsibilities and seek to impose a burden on their former partner.

Justice Abida Ali Aroni made the ruling on Thursday, June 11 citing her directive on section 24 of the Children Act.

“Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility.

File image of Justice Abida Ali Aroni

File image of Justice Abida Ali AroniFILE

In the Act, parental responsibility means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child including adequate diet, shelter, clothing, medical care, education and guidance.

The judge was ruling on an appeal by a man challenging a Magistrate Court’s decision which hade overburdened him with a financial task that required him to take care of his three-year-old son sired with his former wife.

The man had been directed to be paying Ksh 97,000 as school fees and Ksh 20,000 monthly allowance for food.

The respondent who is the mother is to offer shelter, clothing and pay the nanny. The father will have access to the child on Saturdays to return the minor on Sunday afternoon on alternative weekends and half of the school holidays.  Both parties are to maintain a health cover for the child,” the Magistrate had declared.

The father lamented that the costs fronted to him would affect his livelihood as they were outrageous and beyond his financial capabilities.

Judge Aroni noted that both parties were employed and thus needed to equally meet the costs.

Both parties are in salaried employment and earn substantial income so that none of them should be hard-pressed to take up a higher responsibility than the other. Both should realise that it is not the same since their divorce and they should as of necessity build consensus on which school they will both be comfortable to pay.

The Applicant/father and Respondent/mother shall equally share school fees and school-related costs of the minor until further orders of the court. The father will also pay Kshs 10,000 a month which will go to assist the respondent with costs of food and clothing for the minor pending hearing and determination of the appeal.

Each will continue to run an insurance cover for the minor. Each party to pay their own costs,” she ruled.

Last year, CJ Maraga had cited the change in law citing that the Childrens Act was discriminatory to the male gender.


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