High Court caps father’s university fee obligation in landmark child support ruling

The High Court in Nairobi has delivered a landmark ruling limiting a father’s financial obligation towards his daughter’s university education, holding that a parent cannot be compelled to pay higher fees arising from a unilateral decision to transfer a child from a public to a private university.

Justice Helene Namisi, sitting in Nairobi, partially allowed an appeal by a father who had challenged an earlier decision of the Milimani Children’s Court that ordered him to pay his daughter’s university tuition, related expenses and comprehensive medical insurance without setting any financial limits.

The dispute arose after the couple’s marriage collapsed in 2018, leaving the mother to raise their daughter.

The student was initially admitted to the Jomo Kenyatta University of Agriculture and Technology (JKUAT) to pursue a nursing degree before the mother transferred her to Kabarak University to study Clinical Medicine without consulting the father.

The father argued that the move to a private university more than doubled his financial burden and that he should not be forced to shoulder costs arising from a decision in which he had no input.

He also challenged the lower court’s directive requiring him to meet unspecified “related expenses” and provide comprehensive medical insurance, saying the order exposed him to unlimited financial demands.

In her judgment, Justice Namisi reaffirmed that both parents have a constitutional duty under Article 53 of the Constitution to support their children.

However, she stressed that equal parental responsibility does not automatically translate into a 50-50 sharing of expenses and should instead reflect each parent’s financial capacity.

The judge noted that financial records showed the father had substantial undisclosed income, while the mother, a nursing professional, had failed to file an affidavit detailing her financial means during the original proceedings, prompting the court to draw an adverse inference against her.

On the issue of university choice, Justice Namisi ruled that one parent cannot unilaterally move a child to a more expensive institution and expect the other parent to automatically bear the additional cost.

The court capped the father’s tuition obligation at the amount he would have paid had the student remained at JKUAT, with the mother ordered to meet the extra costs resulting from the transfer to Kabarak University.

Justice Namisi further directed that the student must first seek financial assistance through the Higher Education Loans Board (HELB), bursaries and scholarships, with any funding received reducing the father’s financial liability.

The court also set aside the requirement for the father to provide comprehensive private medical insurance, ruling that his obligation would be fulfilled once the student was enrolled in the national statutory health insurance scheme and the mandatory university medical fee had been paid.

Allowing the appeal in part, Justice Namisi substituted the Children’s Court orders with new directives extending parental responsibility for the duration of the daughter’s undergraduate studies while clarifying the scope of the father’s financial obligations.

Each party was ordered to bear its own legal costs.