Father fails to rescue his Sh2.3m property in child upkeep dispute
National
By
Kamau Muthoni
| Aug 16, 2023
The High Court has declined to come to a man's aid in Sh2.3 million child upkeep dispute.
The Children's Court had ordered for auction of the man's property to recover the money he failed to pay for his two children's education.
The petitioner, who could not be named for the sake of the minors' privacy, then moved to the higher court to challenge the decision.
But Justice Maureen Odero dismissed his application and slapped him with the costs of the case he had filed against the children's mother.
The judge termed the man a habitual contemnor who had for years failed to honour judicial orders.
"He who comes to equity must come with clean hands. Having deliberately refused to obey valid court orders the applicant cannot expect this court to exercise its discretion in his favour. Having deliberately disobeyed court orders made on November 22, 2022, the applicant (KKW) cannot now seek that the court make orders of stay in his favour. He is a serial contemnor who deserves no audience before the court," ruled Justice Odero.
The dispute between the two started in 2012.
After seven years, the Children's Court ordered the man to pay Sh15,000 for upkeep. Following the orders, the woman demanded Sh2.6 million in arrears backdated to 2015.
The court also directed the woman to have legal custody of the minors, but the father was allowed to have the children during summer holidays and have access to them whenever he is in Australia.
He was also ordered to pay the arrears that had accrued over the years.
But another dispute arose on if the man should pay for the period he never remitted his part of upkeep. In the end, Milimani Senior Resident Magistrate HM Mbati, on November 18, 2022, allowed an application to sell the man's land to recoup Sh2.382 million.
Aggrieved, he moved to the High Court early last year seeking to block the auction pending an appeal.
He argued that he stood to suffer loss as the minors would be taken out of Kenya and he may never see them again.
The man claimed that if his property was sold, it would render his appeal an academic exercise.
However, Justice Odero stated that he failed to consider that the two minors were suffering due to his failure to obey court orders. The judge was of the view that the father's needs cannot supersede those of the children.
"It is trite law that courts do not make orders in vain. A person to whom a court order is directed is under an obligation to obey such orders. The applicant has failed to obey the orders made by the Children's Court on November 22, 2022. It is indeed ironic that the Applicant has now rushed to the High Court...," said Justice Odero.