The High Court in Nairobi has ruled that co-parenting after separation does not require parents to share child-related costs in equal halves, even where both parents earn similar incomes.
In a decision that reshapes how financial responsibility is viewed after separation, the court said child support must be fair and based on each parent’s situation, including choices made after the relationship ends.
The ruling arose from a long-running dispute between two medical doctors, identified in court records as Dr JNM and LGM, who married in 2018 and separated in November 2021. The disagreement centred on custody, access, schooling and financial responsibility for their two children, aged five and six.
The conflict escalated after LGM moved out of the Kilimani matrimonial home with the children and relocated to Ongata Rongai.
The move triggered a case at the Children’s Court over custody, school transport and access. Dr JNM claimed the children were taken while he was at work, withdrawn from school and cut off from him.
He reported the matter to the police as a missing persons case and relied on CCTV footage to trace their movement.
LGM gave a different account, saying she left the home to protect herself and the children from violence, mental strain and psychological harm.
These opposing claims deepened the dispute and led to parallel cases in both the Children’s Court and the High Court.
JNM argued that the move to Ongata Rongai was done without his agreement, pushed the children far from him and made it harder for him to take part in their daily lives.
In 2024, the Children’s Court ordered joint legal custody, granted physical custody to the mother and directed the father to meet major costs, including school fees, transport, medical cover and clothing. Dr JNM challenged the ruling, saying it placed an unfair financial load on him and ignored the idea of shared parental duty.
The High Court partly agreed with his appeal, clarifying that equal parental responsibility under the Constitution does not mean equal financial payment. “Shared responsibility does not imply a 50:50 mathematical split, but a contribution proportionate to means,” the court stated.
The court noted that both parents are high-earning doctors with nearly the same monthly pay, each earning over Sh250,000. It found that the lower court had placed too much financial weight on the father by ordering him to cover almost all direct costs.
School transport emerged as a key issue. The children remained in school in Kilimani while the mother lived in Ongata Rongai. The Children’s Court had ordered the father to pay about Sh90,000 per term for transport, based on school bus charges, even though the children were often transported privately.
Justice Helene Namisi ruled that this was unfair, especially since the father opposed the move. “While the respondent had the right to move, the consequential cost of that move—specifically the increased transport burden—cannot be wholly shifted to the appellant, especially when he opposed the move,” the judge said.
The court also held that ordering payment based on bus fees when no bus was used was not fair compensation. It described the approach as an unjust transfer of money rather than payment for real costs. As a result, the court directed the mother to take up daily school transport costs as part of her role in supporting the children’s education.
The judgment also dealt with access and wider parenting concerns. The mother had objected to the father spending time with the children, arguing they were young and that he left them with “strangers.”
The High Court rejected this view and affirmed the place of extended family in child care. “Labelling blood relatives as strangers to deny a father custody is a mischaracterisation that this court rejects,” the judge said.
Claims that the father was careless with the children were dismissed due to lack of medical proof. A report by a Children’s Officer found the children happy, healthy and well cared for during visits with him. The findings supported continued access and contact between the father and the children.
The ruling sets a clear message that co-parenting is about fairness, not equal splits, and that financial duties must reflect real costs, income levels and the effects of personal decisions made after separation.
