Picture this: you marry your soul mate in 2000. In 2001, you were blessed with a daughter. By 2013, just as she is sitting for her KCPE, the marriage collapses, and you walk out of the matrimonial home. Your former spouse hauls you to court for financial maintenance, and you find yourself funding your daughter’s education at one of the country’s National Schools. She excels, joins university on a public-institution admission letter costing roughly Kshs 110,000 per semester, and the trial court orders you to pay her school fees, “related expenses,” and even a comprehensive medical cover, for a child who is now a legal adult.
You agree to pay, and you encourage her to apply for a HELB loan to ease the burden. She refuses. Then, without consulting you, her mother unilaterally transfers her to a private university where fees jump to Kshs 150,000 per semester, layering on vague “school-related expenses” and a private medical scheme. You appeal to the High Court, arguing that the orders are oppressive, disproportionate, and inconsistent with the constitutional principle of equal and shared parental responsibility, and that, in any event, parental responsibility should not extend beyond the age of 18.
This is not a hypothetical case but the facts in a recent High Court of Kenya judgment in the case of SMG v EKA (Family Appeal E087 of 2024) [2026] KEHC 4849 (KLR) (Family) (17 April 2026) (Judgment)
Financial maintenance disputes are among the most emotionally charged and heavily litigated family law matters in Kenya. While every parent has a legal and moral obligation to provide for their child, that duty is neither absolute nor limitless. Courts are increasingly being called upon to balance the constitutional imperative of safeguarding the best interests of the child with the equally important principle that maintenance orders should not become oppressive, punitive, or financially ruinous to either parent. The case reaffirms that although the welfare of the child remains paramount under Article 53(2) of the Constitution, maintenance orders must equally reflect fairness, proportionality, transparency, and each parent’s actual financial ability.
What is Child Maintenance under Kenyan Law?
Child maintenance refers to the legal obligation imposed upon parents to provide financial and material support necessary for the upbringing, welfare, education, healthcare, shelter, and general development of their children.
Maintenance extends beyond merely paying school fees. Depending on the circumstances of each case, it may include: Food and nutrition; Housing and accommodation; Clothing; Medical care and health insurance; Education expenses; School-related necessities; Reasonable transport costs; Emotional and developmental support; and any other reasonable expenses necessary for the child’s welfare.
The objective of maintenance is not to enrich one parent or impoverish the other. Rather, it is to ensure that a child enjoys a standard of living reasonably commensurate with the financial abilities of both parents while safeguarding the child’s best interests.
What is Shared Parental Responsibility?
Shared parental responsibility is the legal principle that both parents bear continuing duties and obligations towards their child regardless of whether they are married, divorced, separated, never married, or living in different countries.
Parental responsibility extends beyond financial support. It encompasses the rights and obligations to make significant decisions affecting the child’s life, including matters relating to: Education, Healthcare, Religion, Residence, General welfare, Moral guidance, and Overall development.
The Constitution therefore envisions parenting as a collaborative undertaking rather than a burden resting upon one parent alone.
Does Shared Parental Responsibility Mean Every Parent Pays 50% of the Child’s Expenses?
This is one of the most misunderstood provisions in Kenyan family law. Article 53(1)(e) of the Constitution guarantees every child “the equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.” Litigants frequently and mistakenly read this as mandating a rigid, mathematical 50:50 financial split.
Kenyan courts have consistently rejected that reading. In SMG v EKA, the High Court held that equal responsibility does not translate into a mechanical 50:50 apportionment; rather, contribution must be proportionate to each parent’s respective means, income, and earning capacity, always assessed through the lens of the child’s best-interest principle. In the Court of Appeal decision in PKM v SMM [2017] eKLR, the court recognized that parents rarely possess identical incomes, assets, earning capacities, or financial obligations. Accordingly, one parent may legitimately shoulder a greater share of the child’s expenses where that parent enjoys substantially greater financial means. Conversely, a parent with a modest income cannot be compelled to meet obligations beyond their realistic financial capacity merely in the name of equality.
How Do Courts Determine Each Parent’s Financial Contribution?
Family and matrimonial financial proceedings in Kenya are inherently inquisitorial. The court cannot make a fair and equitable apportionment of maintenance in a vacuum; it requires full and frank disclosure of each party’s income, assets, expenditure and liabilities, supported by documentary evidence such as payslips, M-Pesa statements, bank statements, and tax returns. This is achieved through an Affidavit of Means. For a court to arrive at what a party should contribute, it considers various factors such as each parent’s income; employment status; business interests; assets and investments; existing financial obligations; number of dependents; educational needs; overall welfare of the child, etc.
The guiding principle is one of proportionality. Maintenance orders should neither impoverish one parent nor unjustly enrich the other. Rather, they should allocate responsibility fairly while preserving the child’s welfare and dignity.
Can Parental Responsibility Continue After a Child Attains the Age of 18 Years?
Yes. While the ordinary rule is that a parent’s maintenance obligation lapses when a child attains the age of majority, the Children Act 2022, CAP 141 recognizes that adulthood does not automatically confer economic independence — particularly where a child is pursuing tertiary education. Section 35(1) of the Children Act, 2022 empowers the court to extend parental responsibility beyond the eighteenth birthday where it is satisfied, on application or of its own motion, that special circumstances exist regarding the welfare of the child. Such circumstances may include: A child pursuing tertiary or university education; Physical or mental disability; Chronic illness requiring continued support; Special educational needs; or any other exceptional circumstances demonstrating that continued support is necessary.
In SMG v EKA [2026] KEHC 4849 (KLR), the High Court reaffirmed that the extension of parental responsibility is an exception rather than the norm and must be supported by evidence demonstrating the necessity for continued support. The Court observed that university education is one of the recognized grounds upon which parental responsibility may properly be extended, provided the extension is reasonable, proportionate and consistent with the child’s best interests.
Can a Parent Be Compelled to Pay University Fees for an Adult Child?
Yes, but not without limits. The High Court in SMG v EKA [2026] KEHC 4849 (KLR) recognized that university education has increasingly become a necessary component of modern education and that, in appropriate cases, parents may be required to continue supporting a child who is pursuing higher education.
However, the Court was equally emphatic that such support must remain: Reasonable, Necessary, Proportionate, Affordable, and Consistent with each parent’s financial ability.
Maintenance orders should therefore facilitate the child’s education without imposing an excessive or punitive financial burden on either parent.
Importantly, the Court cautioned against treating a parent’s financial capacity as limitless merely because the child has secured admission to a university.
Is an Adult Child Required to Apply for HELB or Other Educational Funding Available?
Kenyan courts have imported the civil-law doctrine of mitigation into family financial remedies. Where an adult child is eligible for state-subsidized funding through the Higher Education Loans Board (HELB), Government Scholarships, Bursaries such as CDF, County Government, or other lawful educational funding programs, then such opportunities must be pursued before requiring parents to shoulder the entire financial burden.
Accordingly, an adult child who deliberately refuses to apply for available government funding without any reasonable justification cannot expect the court to require a parent to pay the entirety of university fees that could otherwise have been reduced.
The Court therefore endorsed the principle that family law remedies are also subject to the general duty to mitigate financial loss.
Can One Parent Unilaterally Transfer a Child to a More Expensive Institution and Require the Other Parent to Pay?
Generally, no. Kenyan courts treat mutual consultation on major decisions, including the choice of educational institution, as a core incident of shared parental responsibility. A parent cannot unilaterally escalate the other parent’s financial exposure and then expect automatic enforcement of the inflated cost.
In SMG v EKA, the mother unilaterally transferred the child from Jomo Kenyatta University of Agriculture and Technology (JKUAT), a public university charging roughly Kshs 104,000-108,000 per trimester, to Kabarak University, a private institution charging approximately Kshs 150,000 per trimester. The High Court held that this constituted a breach of the collaborative nature of shared parental responsibility, and capped the father’s tuition liability at the original, lower JKUAT rate, directing that any premium arising from the unilateral transfer be borne exclusively by the parent who initiated it, or by the adult child herself.
How did the court deal with vague heads of “school-related expenses” in maintenance orders?
The High Court in SMG v EKA warned that broad and undefined phrases such as “other school-related expenses” can easily be abused to harass or extort funds beyond what is objectively necessary for education. It held that such items must be quantified or narrowly particularised (for example, specifying transport, books, or accommodation) to prevent perpetual litigation and maintain proportionality in financial maintenance orders. This approach promotes certainty, accountability and effective enforcement while safeguarding the child’s welfare.
Can Financial Maintenance Orders Become Oppressive?
Yes. One of the clearest messages emerging from the recent High Court decisions is that maintenance orders should never become instruments of oppression, punishment or financial weaponization.
While the best interests of the child remain paramount under Article 53(2) of the Constitution, those interests must be balanced against the constitutional requirement of shared parental responsibility under Article 53(1)(e).
The High Court emphasized that maintenance orders must therefore satisfy several guiding principles. They must be: Reasonable, Necessary, Proportionate, Certain, Evidence-based, Financially sustainable, and Capable of compliance.
An order that exceeds a parent’s genuine financial ability serves neither the interests of the child nor the administration of justice. Rather than promoting parental responsibility, such an order risks generating further litigation, non-compliance, and conflict between parents.
The emerging jurisprudence signals a deliberate shift towards maintenance orders that are fair to both parents while remaining firmly anchored in the best interests of the child.
Can the High Court, sitting on appeal, actually reduce or cap a trial court’s maintenance order?
Yes. As a first appellate court, the High Court has the jurisdiction and duty, articulated in the celebrated case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and reaffirmed in Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates, to subject the entire evidence and judgment of the trial court to a fresh and exhaustive re-examination, reaching its own independent conclusions (while remaining mindful that it neither saw nor heard the witnesses testify).
Where a trial court’s apportionment is found to be lopsided, unquantified, or to expose one parent to unchecked financial inflation driven by the other parent’s unilateral choices, the appellate court will intervene to restructure the order with certainty and proportionality. In SMG v EKA, the High Court cited MBO v MNM (Civil Appeal E114 of 2023) [2025] KEHC 10953 (KLR) for the proposition that appellate courts must intervene to reduce or cap maintenance amounts that are excessive or fail to reflect the parties’ proportional financial capacity, precisely the intervention the Court itself then applied by capping tuition liability, striking out the comprehensive medical cover order, and requiring HELB funding to be exhausted first.
Financial maintenance orders, in short, must never become oppressive to either party. They must be constitutionally anchored in equity, proportionality, and the demonstrable financial realities of both parents, never weaponized as an instrument of retribution for a failed marriage and never permitted to sanction the financial abdication of a parent of means.
What Practical Principles Can Be Drawn from the Recent Court Decisions?
- Shared Parental Responsibility Does Not Mean Equal Financial Contribution: Although Article 53(1)(e) speaks of equal parental responsibility, equality refers to the existence of the obligation rather than an automatic 50:50 sharing of expenses. Financial contribution must always reflect each parent’s actual financial capacity.
- The Best Interests of the Child Remain Paramount: Every maintenance order must ultimately promote the child’s welfare. However, the child’s best interests must be balanced against fairness, proportionality and the financial realities facing each parent.
- Financial Disclosure is Essential: Maintenance orders should be founded upon credible evidence rather than assumptions. Courts should insist on comprehensive financial disclosure through Affidavits of Means supported by documentary evidence.
- Maintenance Orders Must Not Become Oppressive: Family law is intended to protect children, not to punish parents. Maintenance should therefore remain reasonable, proportionate and financially sustainable.
- Parents Must Jointly Participate in Major Educational Decisions: Neither parent should unilaterally make major educational decisions that significantly increase financial obligations before consulting the other parent. Shared parental responsibility necessarily includes shared decision-making.
- Adult Children Must Also Act Responsibly: Where government funding, HELB loans, scholarships or bursaries are reasonably available, students should make genuine efforts to access them. Parents should only be expected to meet the balance that remains after reasonable efforts have been made to secure alternative funding.
- Maintenance Orders Should Be Clear and Specific: Courts should avoid vague expressions such as “other school-related expenses.” Instead, maintenance obligations should be expressly quantified or sufficiently defined to minimize future disputes.
Frequently Asked Questions (FAQs)
Q: Can child maintenance continue after a child turns 18 years old?
A: Yes. The court may extend parental responsibility where justified, including where the child is pursuing university education or where special circumstances exist.
Q: Must both parents contribute equally to maintenance?
A: No. Contributions are determined according to each parent’s financial ability and the child’s needs, not by an automatic 50:50 formula.
Q: Can a parent refuse to pay university fees simply because the child is an adult?
A: No. Where parental responsibility has been lawfully extended, a parent may still be required to contribute towards higher education expenses.
Q: Why is an Affidavit of Means important?
A: It enables the court to determine each parent’s true financial ability and ensures that maintenance orders are fair, evidence-based and proportionate.
Q: Can maintenance orders be varied?
A: Yes. Where circumstances materially change, such as loss of employment, increased income, completion of education or changes in the child’s needs, either parent may apply to the court for variation or review of the maintenance order.
How Njaga & Co. Advocates LLP Can Assist
At Njaga & Co. Advocates LLP’s Family Law, we provide strategic, practical and results-oriented legal representation in all aspects of family law, including:
- Advising parents on their rights and obligations under the Children Act, 2022;
- Instituting or defending maintenance proceedings;
- Applications for extension of parental responsibility beyond eighteen years;
- Applications for variation, review or enforcement of maintenance orders;
- Appeals from Children’s Court decisions;
- Preparation and scrutiny of Affidavits of Means and financial disclosure documents;
- Representation in disputes concerning school fees, university education and educational expenses;
- Child custody, access and parental responsibility disputes; and
- Alternative dispute resolution aimed at preserving healthy co-parenting relationships while safeguarding the child’s best interests.
Our approach combines technical legal excellence with practical solutions tailored to the unique circumstances of every family.
Disclaimer: This article provides general information and does not substitute for legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
