A Nairobi Kadhi Court has struck out a US-based father's affidavits in a child maintenance case.
The feud pit Abshir Yussuf Abdi, an independent commercial truck driver in Omaha, Nebraska, against Hibo Said Hussein, the mother of their four children, who lives in Nairobi.
The father had previously been remitting $500 monthly through Amal Express to support his family, but financial remittances abruptly stopped.
The mother asserted that the cessation of support directly followed her remarriage.
She asked the court to issue an interim order compelling Abdi to pay monthly maintenance for the children totaling Sh94,500, being Sh55,000 for rent, Sh20,000 for food, Madrassa tuition at Sh12,000, electricity Sh3,000, Wi-fi Internet Sh2,500 and Water Sh2,000.
She also demanded comprehensive medical insurance for the four children. Additionally, she requested a refund of Sh114,000 for 2024 junior secondary school fees paid to Haider Academy California in Nairobi.
Furthermore, she sought maintenance arrears totaling Sh195,000 for November 2023, December 2023 and January 2024, calculated at the previous rate of Sh65,000 per month.
In her second application filed on July 22, she requested a notice requiring him to show cause. She also asked the court to transmit the decree to the United States for registration, wage attachment and enforcement against his earnings as a commercial truck driver.
Additionally, the mother requested a certificate of arrears to facilitate passport denial and enforcement through international child support mechanisms.
In his defence, Abdi told the court he was a consistent provider who had fallen on hard times, maintaining no company was “willing to engage and/or hire independent truck drivers" amid what he described as political ramifications facing minorities in the United States, "and particularly, the Somali community."
He argued that under Islamic Law (Sharia), while he is responsible for the direct maintenance of his children, he is "not obligated to subsidise the housing (Sh55,000 rent) and domestic utility bills of the respondent's new matrimonial home, as the financial responsibility of that household rests with the respondent/applicant's new husband."
He contended he was only willing to pay a strictly calculated sum for direct nutritional, medical, and educational needs.
Abdi told the court upon finding employment again, he was willing to continue sending the $500 monthly.
He argued that the interim court order issued on June 2, was too vague to be enforced. In his submission, he pointed out that the directive "merely directing the applicant to 'provide maintenance for the children of marriage'" lacked a specific financial figure.
Consequently, he maintained that contempt proceedings were "legally and factually premature” since he could not be in default of an undetermined amount.
He asked that both applications be dismissed.
The court declined to treat the father’s replying affidavits, both dated September 7, as evidence in the case.
The mother had attacked them as “incurably defective, invalid and bad in law for want of proper attestation”.
She pointed out that Abdi “did not physically or lawfully appear before a duly authorised Commissioner for Oaths or an accredited Notary Public” as required under the Oaths and Statutory Declarations Act (Cap 15, Laws of Kenya) and the rules governing affidavits in Kenyan courts.
She argued that this rendered the documents “incompetent, unsworn hearsay and liable to be struck out from the record”.
Having struck out the affidavits, the court treated the father as having offered no admissible evidence to rebut the mother’s case on maintenance.
The court noted that he had not stated where exactly his employment was terminated and had attached no certified proof of income loss.
It therefore found that “the applicant is deemed to have failed to provide the necessary needs of the children of marriage even after being ordered to provide the same pending hearing and determination of the matter.”
The court then required him to appear before it on November 10, “either virtually or physically to show cause why he should not be cited for contempt of court orders”.
The court ordered him to pay Sh756,000 either in lump-sum or installments of Sh189,000 each month for eight months in child support or have contempt of court proceedings instituted against him.
