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Judge: No sense in in jailing parents over child upkeep

By Kamau Muthoni | November 17th 2021
Justice Reuben Nyakundi. [File, Standard]

A High Court judge has ruled that sending to jail errant parents in child maintenance cases is not the best option, arguing it hurts the minors.

Justice Reuben Nyakundi, in a landmark judgment, says that sending a parent to civil jail for failing to shoulder his or her responsibility, does not right a wrong.

According to him, enforcing a children’s court order ought to ensure parties comply with maintenance orders.

However, the judge says jailing the parent penalises the emotion and psychology of the child it is meant to protect.

“The natural result in my view on committal to prison proceedings underpinned on the best interest and welfare of the children might reasonably subject the children to emotional, psychotraumatic warfare,” the judge ruled.

He added: “More difficult ones that position has arisen of committing another parent to civil jail is that it might as well produce considerable strains not only to the parent but the welfare of the child.”

In his ruling, Justice Nyakundi argued that “The peculiar circumstances of this case is that the parties herein were once husband and wife. The question then would be; how did the said amount accrue to the extent of executing warrants of arrests to commit to civil jail? How did the debt come to be?”

When ambers of love kindle the hearts of mortals, children seal the moments shared and join the two lovebirds at the hip as parents, he said.

However, when there is no more spark, sharing parental responsibility oftentimes become a full-blown war.

At the heart of these cases is custody and who will shoulder the bills of raising the children.

Justice Nyakundi is of the view that parents weaponise the cases with threats of committing the other to jail for failing to honor court orders.

While settling an appeal between a man codenamed CCM and his ex-wife CNM, the judge says that it is only in the extreme of defiance that the court can opt to crack the whip.  

CCM and MNM were married at one time. They were loving parents at the time sired three children - RKC, VDC and SKC.

When sparks of love dimmed, the two parted ways and thereafter, MNM filed a case for custody. She also sought Sh30,000 maintenance. CCM objected.

He instead filed an application for his ex-wife to produce the minors for private examination in the presence of a children officer. The court granted the orders in 2016. The case quickly spiralled from custody and maintenance to a jail issue after the children court issued a warrant of arrest against MNM. The man sought to jail her for six months saying she was not providing part of her maintenance.

Justice Nyakundi, however, said the best interest of the minors is not in jailing their mother.

He says that it costs Sh60 a day to keep a convicted person in civil jail. This translates to Sh10,800 a month. According to him, the money can instead be used for child welfare.

“Other than pay to keep the appellant in civil jail, this would be money channelled towards the welfare of minors. This would appear to be more like of personal scores being settled…,” judge ruled.

He said: “If I were to allow the notice to show cause and commit the appellant to civil jail as anticipated by the respondent, that would then mean six months of absence of the appellant from the minors. Not to mention the psychological trauma the minors would face of knowing that their mother was committed to jail. This in my view, does not in any way express the best interests of the minors.”

The judge also notes that if the woman proves that she cannot meet her cost of raising the children, then the children’s court should not jail. Being poor, he says is not a crime.

Justice Nyakundi, in his judgment, adds that the lower court ended up entertaining competing interests between the man and his ex-wife instead of sorting out their children’s welfare.

He says both parents contributed to worsening the situation.

“I dare say that in relation to the trial, the parties conduct has put the fairness of the trial in jeopardy, where it is such that any Judgment in favour of either the father or mother would have to be regarded as unsafe or it amounts as such to an abuse of the process of the court as to render the proceedings void or irregular,” he continues.

In the case, the woman argued that her ex-husband came to court without clean hands as he too did not obey court orders. According to her, the warrants issued against her were unlawful. The man on the other hand insisted that children’s court was right.

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