https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8703

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **E196** OF 2024 ANNE HONGO OPIYO…………..………………………………APPELLANT VERSUS ENOS ANYANGE OKOMBO…………….……………..…….RESPONDENT ***(Being appeal against judgment and decree in Mavoko Chief Magistrate’s Court (Honourable E.K. Suter PM) divorce cause number E087 of 2022 dated 11th July 2024)*** **JUDGMENT** By petition dated 16th November 2022, filed in Mavoko Chief Magistrate’s Courts, the respondent sought to have his marriage to the appellant dissolved and costs be awarded to him. He cited desertion and irreconcilable differences as grounds of him seeking divorce. In her response, the appellant resisted the petition and accused the respondent of neglect, desertion, denial of companionship and conjugal rights and being a heavy drinker and a womanizer. The appellant also counterclaimed for maintenance and prayed that the couple be given opportunity to reconcile as she believed in the institution of marriage. ***The respondent’s case*** The matter went to full hearing with the only witnesses being the parties. The respondent told the court that he married the appellant on 11th August 2007 at Mombasa Anglican Memorial Cathedral after which they were blessed with ENA, NRA and DHA. He added that, due to the appellant’s utter disrespect and psychological trauma, he was forced to leave the matrimonial home in Mavoko and live away from the appellant since 2013. He added that the marriage had irretrievably broken down. In cross-examination, he admitted that he knew one Yaeda who was his child with Eliza Akinyi Otieno who was also the mother to one Jayden. He also admitted that the children named in the petition were his with the appellant. He denied that he left the appellant to live with Elizabeth because she had a boy. He insisted that he left because the appellant chased her from the house accusing him of being a drunkard and a womanizer. He added that he was living in the US with Elizabeth but not as a husband and wife and that he got into another relationship after separating with the appellant. He stated that he met with the appellant in Mombasa and that their decision to migrate to Nairobi was mutually done by both of them. Pressed further, the respondent added that the appellant as working at a place called Shenka earning Kshs 10,000.00 and that he opened for her a clearing business called Fanaka because the salary was little. He at the time was working with KRA earning a salary of Kshs 75,000.00. He added that he did not support the appellant because the business was opened after their marriage. The appellant also started a chicken farming at their residence in Nairobi but he would occasionally help whenever she was in a serious need but not a substantially agreed amount. The respondent confirmed further that he was maintaining the children of marriage. He went to the USA and Eliza followed latter after both sought asylum. He stated that the forms he filled in his application for the asylum indicated that he was married to Elizabeth but that was not the true position as there was no legal marriage between him and Eliza. He concluded by stating that he had built a home for the appellant and their children. ***The appellant’s case*** The appellant told the court that she believed in marriage and was optimistic that given a chance, their marriage would work. She denied that she was a business woman and accused the respondent of bigamy and added that he was an adulterous man and had three children with one Elizabeth Atieno Otieno. She claimed that the respondent had stated earlier that he was married to the same Elizabeth and could only file the petition after divorcing the said Elizabeth. She stated further that the respondent had turned out to be a drunkard and a spendthrift who had no family values and who had deserted her and failed to maintain and provide for her. She also stated that the respondent had subjected her to cruelty after convincing her to leave employment and stay home to take care of their children. According to her, the children came too close to each other which made her unable to get employed. The appellant added that the respondent earned a big salary and lived lavishly owning high-end vehicles and prayed for Kshs 120,000.00 as her monthly maintenance. She prayed for judicial separation instead of divorce to enable them settle their issues and the appellant deal with his character. Further, the appellant stated that she was willing to accept the respondent back if he divorced Elizabeth. She stated that they had poultry business which was the respondent’s idea which she ran until he brought his family into Fanaka which made it difficult to operate the business in Nairobi after she moved to Kitengela in 2010. She claimed that the respondent had insecurity issues forcing her to quit another job she had gotten in Mombasa. She added that the respondent would before they separated support her and even give her his ATM cards and cash. At the time he left, they were expecting their third child. The appellant added that the respondent showed up in 2016 with Elizabeth who he came to introduce to her. He left and called later to tell her that he was not interested in the marriage and she should move on. She claimed that he provided in 2014 and part of 2015. She alleged that she had been borrowing from family members to maintain herself and the children. She alleged that after she moved to Kitengela, she could not get a job and the appellant refused to hire a house help forcing her to remain at home and take the children to school. The appellant bought a Mercedes Benz registration number KBY 800L which he would maintain and fuel. In cross-examination, the appellant stated that she had tried reconciliation vain. She admitted that she holds a bachelors degree and she did not suffer any disability. She insisted that she used to work but she had not worked since 2012. She also stated that she was taking care of the children without help and denied that she was lazy. She claimed that since the respondent did not provide for the children consistently, she could not start a business and that he had refused to repair the vehicle and the same was not in use. She claimed to have financed the construction of their house in Kitengela. ***Trial court’s findings*** In her judgment, the Honourable Magistrate found that grounds for divorce had been proved and dissolved the marriage. She also found that the appellant did not deserve orders for maintenance because she had been living separately without it since 2013 and that the appellant was capable of looking for a job and taking care of herself. It is against this judgment that the appeal has been filed. The memorandum of appeal dated 23rd July 2024 consists of 8 grounds which I find repetitive and oscillating around one issue which is, whether the appellant deserved an order for maintenance. The appellant has not challenged the dissolution of the marriage. Even the prayer seeking setting aside of the judgment is restricted to the cross-petition, maintenance and costs. ***Analysis and determination*** The appeal was disposed of by way of written submissions which I have read alongside the evidence tendered by the parties. The appellant has argued that the court misapplied her mind and failed to appreciate that there is a difference between a situation where a former wife is seeking maintenance and where a former husband is the one seeking maintenance from his former wife. In appellant’s own words, the trial court fell into an error when it applied the authority of ***M E K v G L M [2018] eKLR*** in which the husband was claiming maintenance from the former wife while in this case, it was the wife who was seeking maintenance from her former husband. I have struggled to understand the appellant’s above argument. This is because, on one hand she seems to say that a wife is entitled to maintenance from her former husband but the former husband is not entitled to claim maintenance from his former wife and on the other hand faults the trial court for failing to appreciate equality of spouses at, during and after the marriage as enshrined in Article 45(3) of the Constitution. In my view, the point of consideration should not be the gender of the spouse who is claiming but the circumstances and the merits of their claim. And the merits of a claim are not dependent on and has nothing to do with the gender of the claimant. In my above statement, I am guided by the judgment of Honourable Justice E Githinji JA (Rtd) in ***MEK v GLM [2018] KECA 543 (KLR)*** which he held that; *‘The third and most crucial problem is the constitutional validity of the traditional gender role as framed. Having accepted that****Article 45(3)****of the Constitution creates gender equality in family affairs and entitles either spouse to maintenance from the other spouse, it would be a derogation from the Constitutional principle of gender equality to prescribe a differential treatment for a husband seeking financial provision from his wife.* *Furthermore, as****section 77****of the Marriage Act, 2014 entitles either spouse to seek maintenance from the other spouse, either spouse is by virtue of****Article 27(1)****of the Constitution entitled to equal protection and equal benefits of the law.* *From the foregoing, it is my humble view that the so called traditional gender role has been superseded by the provisions of the Constitution and Marriage Act, 2014 and is not therefore a relevant factor in determining whether or not an order for maintenance should be made in favour of a husband. Indeed, justification for the reversal of the traditional gender role is the Constitution and Marriage Act, 2014.* *In my view the primary and relevant consideration when either spouse seeks maintenance from the other spouse is the financial affairs of the spouses.’* In expounding the purpose and intention of Article 45(3) Honourable Justice G.B.M. Kariuki (as he then was) held as follows in ***W.M.M V B.M.L [2012] 2825 (KLR);*** *‘In considering a claim for maintenance, regard must be heard to the provisions of Article 45(3) of the Constitution of Kenya which recognize 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.” The rights enshrined in this Article connote equality of parties in a marriage and are intended to ensure that neither spouse is superior to the other in relation to enjoyment of personal rights and freedoms.’* The appellant claims that she was a full time housewife relying on the respondent for maintenance. However, in her evidence, she admitted that during the marriage, she used to do some businesses which were funded by the respondent. She also at some point claimed that she financed part of the construction of their home. Again, she is still having the motor vehicle which the respondent purchased. The couple was separated for 11 years yet the appellant was able to maintain herself as she is recorded stating that the respondent never supported her after they separated except some undisclosed level of support in part of 2015. As far as I can understand from the proceedings, the appellant brought up the issue of maintenance after she was served with the divorce papers. I do not believe her narrative that she was living on money borrowed from family. There was no such evidence. I take position that even where a spouse was reliant on the other on fulltime basis, they should after dissolution or separation or change of circumstances take steps and make efforts to develop and grow themselves. It must be noted that maintenance of the children of the union is not the same as maintenance of either of the spouse. I also note that there was a children matter between the parties and the respondent appear to have been sending money for the children. The fact that the respondent has been sending money for the upkeep of the children does not mean that he was taking responsibility of maintaining the appellant. The appellant has submitted that she carried the high responsibility of bearing the children of the union and maintain that the same should be seen as her contribution to the family which entitles her to maintenance from the respondent. It is interesting how the appellant seems to elevate carrying of pregnancy above all other family responsibilities. Her submissions suggests that since she carried the pregnancy and brought forth the children to this world, she should be maintained after dissolution of the marriage. This in my view is derogating the position of women in the society by seeing them as children bearing machines who should be paid for that. Whereas that burden of carrying pregnancy to term and withstanding the heavy task is divine and unreplaceable, calling for maintenance solely based on that fact only is not only derogatory but also chauvinistic. The appellant does not seem to differentiate between spousal maintenance and division of matrimonial property. The factors to be considered in claims for spousal maintenance are the economic circumstances of each spouse and their ability to take care of themselves while in division of matrimonial property, the court looks at the spouses’ contribution to acquisition of the property in question. There was no proof that the appellant’s economic disadvantage if any was contributed by and was a direct consequence of the marriage. The appellant did not even make suggestion of how she would work towards becoming economically self-sufficient. She wanted maintenance of Kshs 120,000.00 for lifetime. I do not think it would be legally tenable to allow the appellant to sit back and say *‘since I married the respondent and had children with him, he must provide for me.’* She is able and learned enough to secure a job like any other person and provide for herself. That is the epitome of equality. The appellant has put forth an argument that since the respondent was the one guilty of the grounds for divorce, he should have been condemned to pay maintenance. This argument has no basis. A marriage is not a normal contract where after divorce, the guilty party must put the innocent one in the same position they would be had the contract not been breached. Marriage is a mutual union whose consequences of breaking up should not burden either of the parties with unnecessary responsibilities. Taking the approach the appellant has advanced, would infringe on the spouse’s right to association by limiting one’s freedom to opt out of a marriage that is not working. I agree with the submissions of the respondent that one should not enter into a marriage in anticipation of being maintained during and after the marriage. In ***W.M.M V B.M.L (supra),*** it was held that; *‘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.’* According to the appellant, Article 45(3) should be interpreted to mean that the rights which accrue during marriage, in this case maintenance, should persist even after the end of the marriage. This in my view, is taking the provision of the Article too far and beyond what was contemplated. The purpose of the Article was to ensure that no party gains advantage over another after the end of the marriage. It did not seek to bind any of the spouses to responsibilities which should be due from and to a husband and wife even after the end of marriage. Otherwise, that would extent to placing more burden on the spouse yet the privileges of marriage have ceased. Marriage is a unique investment of emotions, feelings, love and social advancement which should not have its eyes on monetary or economic advantage without one’s own efforts and labour. Based on the above, I find no merits in this appeal and the same is hereby dismissed with costs to the respondent. Dated signed and delivered at Nairobi this **19th** day of **June** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Miss Muthee holding brief for Mr. Kirimi for the respondent and in absence of the appellant.