COHABITING FATHER ORDERED TO MAINTAIN CHILDREN

 By David Mutunga, Advocate

 JGM v CNW [2008] eKLR www.kenyalaw.org
<http://www.kenyalawreports.org/>

 High Court at Nakuru

 Koome J

 May 23rd 2008

 The High court sitting at Nakuru has declared that a father of
children born out of wedlock can and will have parental
responsibility for such children. Lady Justice Martha Koome further
strongly said that under the Children Act, 2001, the welfare and the
best interest of the child is of paramount consideration and every
judicial officer is enjoined to treat the best interest of the child
as such. The Judge lamented that the Children Act discriminatee
against children born out of wedlock and implored Parliament to amend
it.

 Claire (not her real name) had filed a suit in the Nyahururu
Principal Magistrate s court seeking maintenance for her twin
children who she allged were fathered by one Japhet (not his real
name). Claire claimed that she had lived with Japhet as husband and
wife even though they were not legally married. She claimed that were
living with another of her children who was not borne out of the
cohabitation, but whom Japhet accepted and was providing for his
support.

 Claire alleged that Japhet had driven her out of their matrimonial
soon after she delivered the twins and that she was forced to move to
another house where Japhet had bought land.

 In his statement of defence Japhet stated that he had had a brief
whirlwind liaison with Claire and that Claire was married to another
man. He stated that he was not the father of the twins and therefore
he was not responsible for their maintenance. At the close of the
trial the magistrate found that both Japhet and Claire were living
together as husband and wife and that the twins were born out of that
relationship and ordered Japhet to pay Kshs 9,000 per month towards
the upkeep of the twins.

 Japhet appealed against the decision of the Magistrate s court on
the grounds that there never existed a marriage between him and
Claire and that the children were not born while he was staying with
her. He further challenged the decision of the Magistrate s court on
the ground that the Magistrate erred in ordering him to pay Ksh 9,000
per month without any proof that he could afford it.

 Claire on the other hand submitted that the Magistrate s court had
properly evaluated the evidence and arrived at the right conclusion
that she had cohabited with Japhet as husband and wife and indeed the
two swore affidavits to support Claire s change of her surname to
reflect Japhet s. Her claim was supported by Japhet s first wife who
admitted that Japhet was living with Claire and she was pregnant when
she left Japhet s house. Japhet even purported to transact a land deal
in which he referred to Claire as his wife.

 Lady Justice Martha Koome heard the appeal. She observed that Claire
had proved that Japhet had assisted her to construct a house and that
it was on that evidence that he was ordered to pay KShs. 9,000 as he
was a man of means.

 Justice Koome made an observation that Claire had not sought for
presumption of marriage by virtue of cohabitation but rather she only
sought for an order of maintenance of the children. The Judge observed
stated that when Claire Wahome filed the suit, she must have been sure
that she was married to Japhet as she had the affidavits sworn
declaring the marriage and some dowry had been paid which is a step
towards formalization of Kikuyu customary marriages.

 Justice Koome recalled that under section 24(1) of the Children Act,
where a child is born out of wedlock the parental responsibility is
placed on the mother in the first instance. The father can acquire
parental responsibility if he makes an application to the court
seeking parental responsibility or where the father and mother by
agreement provide for the father to have parental responsibility for
the child. This provision, the Judge noted, has been criticized, and
rightly so, for its differential treatment of children born out of
wedlock. She remarked that Parliament needed to  amend the Act and
make it possible for either the mother, child, guardian or anybody to
make an application for parental responsibility even for a child born
out of wedlock .

 The Judge found that on the evidence adduced in the magistrate s
court, Claire and Japhet were cohabiting as husband and wife in the
course of which they were begotten of the twins. She noted that
though statute laws do not recognize cohabitation as a form of
cohabitation, the Courts have awakened to the reality that Kenyans
are routinely living together as man and wife and bringing forth
children and when the relationship goes awry, or one of the partners
dies, the victims who are usually women, come to court to seek
justice. The Courts have therefore presumed the existence of a
marriage in many cases where parties who have capacity to enter into
a marriage hold themselves as such and cohabit for a period of time.

 Noting that under the Children s Act the welfare and the best
interest of the child is of paramount consideration and every
judicial officer is enjoined to bear that in mind, Justice Koome
found that the trial Magistrate was right in ordering Japhet to pay
KShs 9,000 per month. His appeal was therefore dismissed.

 Download File
<http://kenyalaw.org/Downloads_FreeCases/hcca_40_of_2004.pdf>