JUSTICE DELAYED

Single mums struggle for child upkeep from deadbeat dads

Courts take two years to dispense with a case, and even when they order upkeep, some fathers still escape responsibility and leave mothers struggling with appeals and legal fees, on top of maintenance

In Summary

• After almost 10 years in court, Wanjiru's case was dismissed in 2018

• Wambui's case was also dismissed in May 2018, while an appeal is pending 

Mother and child read a book
Mother and child read a book
Image: COURTESY

It is said that a real father takes care of his children without being forced to by the law. 

But for Rhoda Wanjiru, even the law has proved inadequate in getting the father of her child to pay upkeep.

Wambui Matheka, on the other hand, laments how it takes about two years to get a verdict, and how one is taken back to scratch when the order is challenged.

 
 

And Margaret has had difficulties paying her lawyer and coping with orders that require her to keep transferring her child. 

 

These women's woes are a sample of the trials and tribulations single mothers go through when trying to get the upkeep their children are entitled to.

For the past decade, Wanjiru has been in and out of courtrooms, filing appeals and complaints, while holding on to hope that the father of her son will pull his weight and pay child maintenance. 

 

When Wanjiru separated from her partner, she retained legal custody of their child and made an out-of-court agreement with him that he would assist in the upkeep of the child. 

 

“We agreed he would pay Sh18,000 per month for upkeep and we would equally split school fees and school-related expenses between ourselves,” she said. 

During an interview with the Star, she explained that after parties form an agreement, they present the terms to the court and they are adopted as interim orders.

“The orders are adopted as you wait for the matter to be concluded and a judgment issued, in the hope that it is concluded in time,” she said. 

 
 

According to Kenya Legal Sources, interim orders are those passed by a court pending a suit. 

However, interim orders do not ultimately determine the substantive rights and liabilities of the parties, in respect of the subject matter. 

 

Despite the agreements and court orders, most men tend to run away from their responsibilities, while the biggest challenge with the judicial system is usually enforcement of court orders.

 
 

FRUSTRATED BY JUSTICE

After her former partner failed to honour their agreement, Wanjiru went to court in 2009.

Although initially heard in open court, in 2018, a shortage of courts saw the proceedings held in magistrate chambers. 

Wanjiru claims this puts litigants at a very compromising position.

“With such secrecy, judicial officers do not conduct themselves professionally. In addition, the public is not there to witness. Only a clerk and an orderly (police officer), who do not say anything,” she said.

She said some judicial officers, including magistrates, order arrests when the manner in which some cases are handled is questioned.

“I was once arrested after asking why the magistrate was being unprocedural,” Wanjiru told the Star. 

For Margaret, her case has remained delayed after she was unable to pay her lawyer. 

“I had another lawyer but he was compromised by the defendant. The magistrate was also not cooperative as he was giving orders then reversing them,” she said. 

For instance, the magistrate ordered her then six-year-old son to be transferred from his initial school after the defendant stated the fee was too high for him. This happened twice in a row within a year. 

“After I transferred and then moved to another place, he made another order to move again from that place to another,” she said.

However, when he made a third order, she refused as he was not facilitating the expenses. 

“My son used to be transferred and once that was done, he would pay for one term and refuse to pay for the next,” Wanjiru said. 

She also started off with a lawyer but, with adjournments and delays, chose to represent herself. 

UNENFORCED ORDERS 

In Wambui's case, when she parted ways with her partner, her child was a little over a year old. 

“When you go to court and file an application, it takes about two years for it to be completely dispensed with, that is if you file an application for contempt or any certain order,” she said. 

She has been self-representing since she filed her case in 2013, but she says it is hard to enforce court orders, especially in a children’s court. 

“I had been trying to enforce those orders from 2013, until I got a ruling that challenged them. When this happens, you have to book an appeal," she said. 

Wambui then moved to appeal at the High Court, which gave her orders that were superior. 

"Even as we speak, I am in the process of reinforcing the high court orders," she said. 

Sometimes to avoid being alone in court, the women who are self-representing are forced to go with a McKenzie friend.

A McKenzie friend is a person (non-lawyer) who assists persons representing themselves in conducting either the prosecution or defence during the process of taking legal action (litigation). 

"I have never had to go with one until I found myself in chambers with a very hostile magistrate," Wambui said. 

Wanjiru and Wambui added that even after the court has ruled in their favour, the defendants take them back to court. 

This interferes with the orders and verdicts previously given, and any resistance to the orders usually leads to the dismissal of the plaintiff's case.

CHALLENGED BY LAW

After almost 10 years in court, Wanjiru's case was dismissed in 2018. Wambui's was also dismissed in May 2018, while an appeal is pending. 

Margaret's case was dismissed last year. 

"Filing a new suit means whatever you filed previously is technically null and void," Wanjiru said. 

"The most difficult thing is enforcing court orders. It is time, financially and emotionally draining, and the attempt is to basically frustrate you until you give up."

She adds when defendants disregard court orders, trying to inquire will only lead to insult. 

"It’s like it’s not even a court. It's usually he who has the money has the bargaining power," she said. 

The women said the law seems to be working against them. 

"It is not enough that you know the law because the only way you can hold a magistrate accountable is what transpires — the wordings exchanged between you, the defendant and magistrate. In most cases, the transcriptions are not made," Wanjiru said. 

She adds the magistrate is the one who is supposed to transcribe what happens and he can choose to alter or omit information from the proceedings by omission or commission.

A lawyer (name withheld) operating at the Mililani children's court told the Star in a telephone interview that it is rare to find unwillingness or lack of cooperation by a judicial institution in regards to handling children's cases.

"These cases always have a timeline and the duration normally depends on the parties involved, and their cooperation on the matter at hand," she said.

The lawyer said only when specific cases are unique in nature do they tend to take lengthy periods.

Another lawyer based in the same department dismissed the claims that judicial officers are not straightforward.

"Low are the chances that such matters are not dealt with accordingly nor given the due respect accorded," he said. 

Wanjiru, Wambui and Margaret are among women who air their grievances through lobby group Children Maintenance Services. They are looking to have the judicial system give them fair trials and treat their cases with the seriousness they deserve.

CMS can be reached through on Facebook and Twitter or on phone at 0710 778880 or 0774 116224.

Edited by T Jalio