Quote from Lawyer on June 20, 2025, 9:01 am

Ensuring that children receive the financial support they are entitled to under a child maintenance order is a critical aspect of family law. When a parent or guardian fails to comply with a court-ordered maintenance obligation, the custodial parent or guardian can take legal action to enforce the order. This article outlines the steps for enforcing child maintenance orders through Kenyan courts, including contempt proceedings and garnishee orders, to help you navigate this challenging situation.

Child maintenance orders are issued under the Children Act, 2001, which mandates that both parents have a responsibility to provide for their children’s needs, including food, shelter, education, healthcare, and clothing. These orders are typically issued by a Children’s Court or a Family Division of the High Court and specify the amount and frequency of payments to be made by the non-custodial parent.

When payments stop or are inconsistently made, the custodial parent can seek enforcement through the courts. Non-compliance is a serious matter, and Kenyan law provides several mechanisms to compel payment, including contempt proceedings, garnishee orders, and other remedies.

Steps to Enforce Child Maintenance Orders

If a parent defaults on their maintenance obligations, the following steps can be taken to enforce the order:

1. Confirm the Default and Gather Evidence

Before initiating enforcement proceedings, verify that the non-custodial parent has indeed failed to comply with the court order. Collect evidence to support your claim, such as:

• A copy of the original maintenance order.

• Bank statements or payment records showing missed or incomplete payments.

• Communication records (e.g., emails, text messages, or letters) demonstrating attempts to resolve the issue amicably.

• A detailed log of the dates and amounts of missed payments.

This evidence will be critical in court to prove the default and justify enforcement action.

2. Attempt Amicable Resolution

Before escalating the matter to court, consider contacting the non-custodial parent to discuss the missed payments. In some cases, non-payment may result from temporary financial difficulties or misunderstandings. If possible, engage a family lawyer or mediator to facilitate discussions and explore solutions, such as a revised payment plan.

If amicable resolution fails, proceed to formal enforcement through the courts.

3. File an Application for Enforcement

To enforce a maintenance order, you must file an application in the same court that issued the original order (usually the Children’s Court or Family Division of the High Court). The process involves:

• Drafting an Application: With the help of a lawyer, file a Notice of Motion or an Application for Enforcement under Section 101 of the Children Act, 2001. The application should outline the details of the default, including the amount owed and the period of non-compliance.

• Supporting Documents: Attach the original maintenance order, evidence of non-payment, and an affidavit sworn by the applicant (the custodial parent) detailing the breach.

• Service of Documents: The court will require that the application and supporting documents be served on the non-custodial parent, giving them an opportunity to respond.

The court will then set a hearing date to review the application.

4. Pursue Contempt of Court Proceedings

If the non-custodial parent willfully disobeys the maintenance order, you can initiate contempt of court proceedings. Contempt proceedings are designed to address deliberate non-compliance with court orders and can result in serious consequences for the defaulter.

Process for Contempt Proceedings:

• File an Application for Contempt: Submit a Notice of Motion supported by an affidavit stating that the non-custodial parent has knowingly and intentionally failed to comply with the court order.

• Prove Willful Disobedience: You must demonstrate that the defaulter was aware of the order and had the ability to pay but chose not to. Evidence such as their income, assets, or employment status may be required.

• Court Hearing: Both parties will present their case during the hearing. If the court finds the non-custodial parent in contempt, it may impose penalties such as:

  • A fine.

  • Imprisonment for up to six months (as per Section 101(2) of the Children Act).

  • An order to pay the arrears in full or in installments.

Contempt proceedings are a powerful tool but require strong evidence of intentional non-compliance. Consult a lawyer to ensure your application is robust.

5. Apply for a Garnishee Order

If the non-custodial parent has a steady income or assets but refuses to pay, a garnishee order can be an effective enforcement mechanism. A garnishee order directs a third party (e.g., the defaulter’s employer or bank) to deduct the owed maintenance directly from the defaulter’s salary or bank account and pay it to the custodial parent.

Process for Obtaining a Garnishee Order:

• File an Application: Submit an application for a garnishee order in the court that issued the maintenance order. The application should specify the amount owed and identify the garnishee (e.g., the employer or bank).

• Supporting Evidence: Provide evidence of the default and details of the defaulter’s income source or bank account. This may require obtaining a court order to access financial records if the information is not readily available.

• Court Approval: If the court grants the garnishee order, it will issue a directive to the garnishee to deduct the specified amount and remit it to the custodial parent or the court.

• Compliance by Garnishee: The employer or bank is legally obligated to comply with the order. Failure to do so may result in legal action against the garnishee.

Garnishee orders are particularly effective when the defaulter is employed or has funds in a bank account. However, they may not be suitable if the defaulter is self-employed or has no identifiable income source.

6. Explore Other Remedies

In addition to contempt proceedings and garnishee orders, the court may offer other remedies to enforce maintenance orders, including:

• Attachment of Property: The court may order the seizure and sale of the defaulter’s assets (e.g., land, vehicles, or other property) to recover the owed amount.

• Variation of the Order: If the defaulter’s financial circumstances have changed, the court may vary the maintenance order to make payments more manageable, provided this does not compromise the child’s welfare.

• Committal to Civil Jail: In extreme cases of persistent non-compliance, the court may order the defaulter to be committed to civil jail until the arrears are paid.

These remedies are typically considered when other enforcement mechanisms have failed.

7. Monitor Compliance and Follow Up

After the court issues an enforcement order, monitor whether the non-custodial parent complies. If payments stop again, you may need to return to court to seek further enforcement. Keep detailed records of all payments and communications to support future applications if necessary.

Challenges in Enforcing Maintenance Orders

Enforcing child maintenance orders in Kenya can be challenging due to:

• Financial Constraints: The defaulter may genuinely lack the means to pay, complicating enforcement efforts.

• Evasion Tactics: Some defaulters may hide assets, change jobs, or relocate to avoid payment.

• Court Delays: Overburdened courts may take time to process applications, delaying relief for the custodial parent.

• Legal Costs: Pursuing enforcement actions can be expensive, particularly if legal representation is required.

To overcome these challenges, work with an experienced family lawyer who can strategize the best approach and expedite the process.

The Role of a Family Lawyer

Navigating the enforcement of child maintenance orders requires legal expertise and familiarity with Kenyan family law. A qualified family lawyer can:

• Advise on the most effective enforcement mechanism for your case.

• Draft and file court applications with precision.

• Represent you in court hearings to ensure your case is presented compellingly.

• Negotiate with the non-custodial parent or their lawyer to resolve disputes amicably when possible.

Conclusion

Enforcing child maintenance orders in Kenya is a vital step to ensure that children receive the financial support they need and deserve. By following the outlined steps (i.e., confirming the default, attempting amicable resolution, filing for enforcement, and pursuing contempt proceedings or garnishee orders) you can hold the non-custodial parent accountable. While the process can be complex, the Kenyan legal system provides robust mechanisms to protect children’s rights.

For expert guidance and personalized legal support, contact us today at +254 716 708 104 or info@lawguide.co.ke. Our team is ready to help you enforce your child maintenance order and secure your child’s future.