[2018] KEHC 4812 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 147 OF 2010

A G M .................... PETITIONER/RESPONDENT

VERSUS

B J M ................ APPLICANT/1ST RESPONDENT

I S ............................................. 2ND RESPONDENT

RULING

1. The 1st Respondent herein filed an application via summons dated 29th August, 2014 seeking for orders that pending the hearing and determination of this application, the court be pleased to grant an order that:

1) …

2) the Petitioner do pay the Applicant/ 1st Respondent alimony in the monthly sum of Kshs Seventy Five Thousand (Kshs. 75,000/-) on or before the last day of each succeeding month.

3) the Petitioner do pay the Applicant/ 1st Respondent arrears of Kshs. Six hundred and ten thousand (Kshs. 610,000/-) towards maintenance which has accrued from December 2013 to date.

2. The 1st Respondent stated that she and the Petitioner celebrated their marriage on 9th June, 2001 in Las Vegas, Nevada USA. Their union was blessed with three issues: W M, S J M and B M M. The marriage was marred with irreconcilable differences as a result of which the Petitioner chased the 1st Respondent from the matrimonial home and instituted divorce proceedings. The proceedings culminated in their divorce. The pronouncement of the decree absolute was on 7th February, 2014, but the Respondent complains that she was never afforded an opportunity to defend herself in the proceedings.

3. The 1st Respondent averred that upon chasing her from their matrimonial home, the Petitioner agreed vide an agreement dated 12th March, 2012 to pay her a monthly spousal allowance of Kshs. 75,000/- as her entitlement from the United Nations who is the Petitioner’s employer. The Petitioner paid her the allowance until December 2013 when he stopped the payments without prior notice. The arrears now stand at Kshs. 610,000/-. She urged she has been deprived of her human dignity as she has resorted to seeking handouts from her relatives and friends.

4. The 1st Respondent asserted that it is only just and fair that she is allowed to seek maintenance from the Petitioner as of right. That the Petitioner’s salary is the only tangible source of income that she knows of, reasons for which she is seeking for the sum of Kshs. 75,000/- from the Petitioner towards her monthly maintenance. The sum constitutes 1/3 of the Petitioner’s monthly earnings. She urged that the amount should be increased to Kshs. 75,600/- since she accesses the children on alternate weekends and during the holidays, on alternate weeks. The children’s court had by an order of 21st May, 2014 granted the Petitioner the sole custody of the children.

5. The Petitioner filed a replying affidavit dated 2nd October, 2014 in opposition to the application. He contended that this court gave judgment in the divorce proceedings on 7th February, 2014, followed by a decree absolute which was given on 27th March, 2014. The parties thereupon reverted to singlehood status without any obligations to each other. He asserted that the arrangement alluded to by the 1st Respondent was purely interim in nature as demonstrated by the Separation agreement dated 12th March, 2012. He referred to the pre-amble of the agreement which reads “pending the determination of Divorce Cause number H.C.D.C. no. 147 of 2010. ” He urged that no further obligations can arise from the agreement since the divorce cause has since been determined.

6. The Petitioner contended that the hearing of the divorce cause on 23rd January, 2014 proceeded in the presence of Mr. Njoroge Advocate who held brief for Mr. Mungai Advocate for the 1st Respondent. Counsel indicated that his client, the 1st Respondent, had opted not to give evidence. The 1st Respondent cannot therefore claim that she was never afforded an opportunity to defend herself or that the matter proceeded ex-parte.

7. The Petitioner denied being entitled to a sum of money from his employer for the benefit of his ex-wife, the 1st Respondent, and asserted that his employer stopped paying the allowances upon pronouncement of the divorce decree. He urged that the 1st Respondent had neglected her obligations and for the past three years, he has single handedly raised their three children, providing all their financial and emotional needs.

8. Learned counsel Ms Kalwa filed written submissions dated 28th February, 2018 on behalf of the Applicant/1st Respondent. Counsel reiterated the contents of the 1st Respondent’s pleadings and submitted that unless the Petitioner is compelled by an order of the court, he shall continue to abdicate his duty to provide the 1st Respondent’s maintenance and upkeep as envisaged in the Constitution of Kenya and the Marriage Act, 2014.

9. Counsel cited section 77of the Marriage Act which provides for maintenance of a spouse upon divorce and urged that if the maintenance orders are not granted, the 1st Respondent will be rendered destitute.

10. Counsel asserted that the 1st Respondent is justified to receive maintenance from the Petitioner so as to continue enjoying the same standard of living as she was accustomed to before the dissolution of their marriage. To support the assertion, counsel cited Article 45 of the Constitution which provides that parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at the dissolution of the marriage.

11. Ms. Kalwa submitted that the Petitioner serves as a senior employee at the United Nations and is therefore financially stable and capable of maintaining the 1st Respondent as per their agreement of 12th March, 2012. That the said agreement is valid and enforceable by this court. Counsel urged that the 1st Respondent has no earnings having been unable to secure a job since the Petitioner confiscated her certificates and testimonials.

12. Ms. Kalwa further filed supplementary submissions dated 26th March, 2018 on behalf of the Applicant/1st Respondent and submitted that a Decree of divorce is not a bar to provision of maintenance envisioned in Article 45of theConstitutionandsection 77of theMarriage Act. That maintenance only lapses upon death or re-marriage of the 1st Respondent none of which have transpired.

13. Learned counsel Mr. Mutiso filed written submissions dated 3rd May, 2018 on behalf of the Respondent/Petitioner. Counsel reiterated the contents of the Petitioner’s pleadings and submitted that Article 45of the Constitution as cited by the 1st Respondent applies at the time of dissolution of a marriage and not after the dissolution of a marriage. He cited the case of S.M.R vs. P.H.S [2013] eKLR in which Musyoka J observed that the old-age tradition in which men were deemed to be the sole breadwinners and to carry the burden of maintaining their spouses does not hold true anymore.

14. Counsel contended that the Applicant/1st Respondent was merely shirking the responsibility to support herself. That she had not given any reasonable explanation as to why she had not sought gainful employment four years after the Decree absolute following divorce was pronounced. He insisted that there was no basis for the 1st Respondent’s application since the children of the marriage are in the custody of the Respondent/Petitioner. He urged the court to dismiss the application.

15. I have analyzed the pleadings and submissions filed by the parties herein and find that the sole issue for determination is whether the Applicant/1st Respondent is entitled to orders of maintenance as against the Respondent/Petitioner.

16. I take note that the Respondent/Petitioner had initially raised a preliminary objection stating that this court is functus officio and therefore lacks jurisdiction to entertain the present application. The preliminary objection was however found to be lacking in merit and dismissed by an order of this court dated 21st May, 2015. The court found that by virtue of section 77(1) of the Marriage Act, 2014it is equipped with jurisdiction to hear and determine an application seeking maintenance after the dissolution of a marriage.

17. Section 77(1)of theMarriage Act, 2014provides thus:

“The court may order a person to pay maintenance to a spouse or a former spouse-

(a) if the person has refused or neglected to provide for the spouse or former spouse as required by this Act;

(b) if the person has deserted the other spouse or former spouse, for as long as desertion continues;

(c) during the course of any matrimonial proceedings;

(d) when granting or after granting a decree of separation or divorce; or

(e) if, after making a decree of presumption of death, the spouse or former is found to be alive.”

18. The Applicant/1st Respondent herein is seeking alimony in the monthly sum of Kshs. 75,000/- and arreas of Kshs. 610,000/- towards maintenance which has accrued from December 2013. The factors to be considered in determining such an application were set out in the case of W.M.M vs B.M.L [2012] eKLR where G.B.M. Kariuki, J (as he then was) observed thus:

“In considering a claim for maintenance, regard must be had to the provisions of Article 45(3) of the Constitution of Kenya which recognizes that “parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at dissolution of the marriage.”…Article 45(3) is in harmony with Article 21(3) of the Constitution which enshrines equality of men and women and specifically states that “women and men have the right to equal treatment”…In light of Article 45(3), the criterion in determining the rights and obligations of spouses in a marriage must treat the husband and the wife as equals and neither has a greater or lesser obligation than the other in relation to maintenance…

…the age old tradition in which men were deemed to be the sole bread winners and to carry the burden of maintaining their spouses does not hold true anymore…

No spouse who is capable of earning should be allowed to shirk his or her responsibility to support himself or herself or turn the other spouse into a beast of burden but where a spouse deserves to be paid maintenance in the event of divorce or separation, the law must be enforced to ensure that a deserving spouse enjoys spousal support so as to maintain the standard of life he or she was used to before separation or divorce. The financial capacity of the spouses has to be examined before the Court makes a finding as to whether a spouse should pay maintenance and if so how much”

19. The question that follows then is whether the Applicant has demonstrated the factors considered by the court in granting post-divorce maintenance. In the case of R P M vs. P K M [2015] eKLR, Divorce Cause 154 of 2008, Kimaru J clearly deliberated on these factors by stating thus:

“Moreover, the common law rules that govern post-divorce maintenance derived from Kenyan as well as comparative case law indicate that the exercise by this court of its discretionary power to award maintenance must be informed by an examination of all the circumstances of the case including: the present and future assets, income, and earning potential of the parties, taking into account their ages and professional qualification; the financial needs and obligations of the parties; the duration of the marriage and the duration of time in which the parties lived separately; the standard of living prior to the breakdown of the marriage; the contributions of the parties to the welfare of the family; and the conduct, where relevant, of each party in relation to the eventual breakdown of the marriage.”

20. According to the Applicant/1st Respondent, she is entitled to Kshs. 75,000/- by virtue of their Separation Agreement dated 12th March, 2012. An examination of the agreement shows that it was intended for use “pending the determination of Divorce Cause Number H.C.D.C No. 147 of 2010 at Nairobi”as clearly stated in the first paragraph of the Agreement. None of the parties have tendered evidence that the Agreement has been amended to cater for situations arising after the determination of the Divorce Cause. The effect of this is that the agreement cannot be found to bind the parties in the absence of additional evidence in support thereof.

21. The evidence presented by the parties herein demonstrates that it is the Respondent/Petitioner who bore the greater responsibility of providing for the family during the subsistence of the marriage. At no point during the marriage was the Applicant/1st Respondent required to contribute towards the maintenance of the children. The evidence suggests that the Applicant/1st Respondent was a house wife whose only job was to care for the family and the expenses would be met by the Respondent/Petitioner.

22. Of importance in the present case is that it is the Respondent/Petitioner who has single-handedly borne the responsibility of raising the children and catering for their needs. It is he who meets all the school fees obligations in the International school attended by the children, and pays for their upkeep which includes food, provisions and medical care.

23. While the Respondent/Petitioner has the custody of the children, the Applicant/1st Respondent enjoys access on alternate weekends during school term and on alternate weeks during school holidays. The access rights are the basis of the Applicant’s prayer seeking maintenance.

24. The Applicant/1st Respondent is a Canadian citizen and she has indicated that she has been unable to secure employment. It is however important to point out that Article 53(1)(e) of the Constitution of Kenyaprovides for every child’s right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. The Applicant/1st Respondent therefore has equal responsibility to provide for the children as does the Respondent/Petitioner.

25. The Applicant/1st Respondent would be entitled to maintenance from the Respondent/Petitioner if it is demonstrated that the Petitioner still receives from his employer, the 1st Respondent’s entitlement as a spouse of a UN employee. In law however, whoever alleges the existence of a fact bears the burden of proving it. The Applicant/1st Respondent ought to have adduced evidence to demonstrate that the Respondent/Petitioner is still in receipt of the said entitlement, to warrant the grant of an order to have the Petitioner remit the allowance to her. This she has failed to do.

26. The grant of maintenance is a matter of discretion and is granted based on the circumstances of each case. In the present case, the Applicant/1st Respondent ought to have demonstrated the basis of her prayers. She has not adduced any evidence of infirmity or disability and there is no reason why she should turn the Respondent/Petitioner into a beast of burden instead of finding ways of earning her living.

27. This is a court of equity and it is trite that he who comes to equity must come with clean hands and do equity. The Applicant/1st Respondent was a major contributor to the breakdown of the marriage that had afforded her the standard of life she now craves.

In the premise, the application dated 29th August, 2014 fails and is consequently dismissed with no orders as to costs.

SIGNED DATED and DELIVERED in open court this 26th day of July 2018.

…………………………………….

L. A. ACHODE

JUDGE

In the presence of …..………...………………….…….……..Advocate for the Applicant/1st Respondent

In the presence of ……………………...………………......….Advocate for the Respondent/Petitioner