The applicant persisted with the application. The application was preceded by a
history of a strained father and son relationship. The applicant's mother and
the respondent are divorced. The applicant stays with his mother and siblings
at a house rented for them by the respondent. The applicant seems to have no
direct communication with his father. He had to send his “A”level results to
his father through a text message. The father denied receiving the text message
saying he became aware of the applicant's results through this application.
After hearing submissions from both parties, I postponed the case to 18 July
2014, when I gave an extempo judgment based on the notes for judgment I had
recorded in my note book, in which I dismissed the applicant's application with
no order as to costs. I have now by letter dated 2 September 2014, from
Muringi, Kamdefwere Legal Practitioners been asked for a written judgment which
I give below.
When the applicant was offered a place by Erode University he braved the cold
relationship between him and his father. He paid him a visit at his offices. He
was however told to make an appointment to see his father. He decided to way
lay his father in the foyer. His father emerged from a lift. He greeted him but
was not favoured with a response. He however went on to state the purpose of
his visit. He told his father that he had secured a place to study pharmacy at
Erode University in India. The respondent told him he was not able to fund
foreign study and asked applicant to enrol at a local University which he can
afford. This set the battle line leading to this application. It is unfortunate
that the father son relationship has degenerated to this level. The respondent
being the elder of the two should have led by example to guide his son back
into a normal father and son relationship. Requiring him to make appointments
to see his own father and not answering his greetings will certainly not help
their relationship. The applicant has taken his fight against his father too
far as demonstrated by his refusing his father's offer to discuss his needs at
a meeting with him, which was, to be held, at his lawyers'offices, or his office.
The applicant refused to meet his father at either place, in the absence of a
security guard. His mother who was present at the hearing offered to accompany
him to his father's office, but he refused insisting that he can only talk to
his father in the presence of a security guard. It seems he no longer trusts
his father to an extent of not wanting to be with him in the absence of
security guards. This is not a healthy relationship, but that is not relevant
to the determination of this case. The law should simply be applied to resolve
the dispute between the parties.
The real issue is on the applicant's quest for education. It is a legitimate
expectation of every child that his parents will pay for his education. The
respondent did not refuse to educate his son. He said he has been paying his
fees up to “A”level and is willing to pay for his education at a local
University. He told the court that he has limited time and means within which
he has to raise the required funds. He tendered Annexure B1 his payslip which
shows he earns US$8 000-00 per month and has a net salary of US$5539.17. He
also receives rentals in the sum of US$750-00. In Annexure B2 he gave a list of
expenses which he said leaves him with a disposable balance ofUS$911.17.
It is unfortunate that this application was not made to a court which can mero
motu investigate the respondent's means. The applicant did not challenge the
respondent's means leaving me with inadequate information from which to make an
informed decision on whether or not to grant the order sought.
Maintenance orders primarily depend on the responsible person's means. From the
facts before me it is not possible to make an order which would commit the
respondent to paying applicant's educational expenses at Erode University for
the duration of his studies. He in his expenses included the education of the
applicant's siblings, their rentals, his rentals and other expenses. The court
should guard against making an order in favour of one child which can drain all
the resources of the responsible person to the prejudice of his other
dependents. The responsible person's means must be evenly spread to all his
dependants.
While I think it is important for the applicant to receive a good education I
must be mindful of the respondent's means and the needs of his other
dependants. I find myself restrained by the respondent's means which could only
have been challenged by the applicant or exposed by an inquiry in terms of s 5
of the Maintenance Act [Cap 5:09]. One hopes the respondent will as
demonstrated by his offer to meet and discuss with the applicant, reflect on
his son's needs and respond to them.
The applicant's application cannot succeed. I will not order costs against the
applicant. He is a young man who has just completed his “A” levels. He has no
means of his own. He should also not be discouraged from applying for
maintenance from his father who until the hearing of this application seemed
unwilling to voluntarily discuss his son's welfare with him.
The applicant's application is dismissed with no order as to costs.
