https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9362

AW v SMK (Family Appeal E076 of 2024) [2026] KEHC 9362 (KLR) (Family) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 9362 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Family Appeal E076 of 2024 CJ Kendagor, J June 22, 2026 Between AW Appellant and SMK Respondent Ruling 1.The Appellant and the Respondent were formerly husband and wife. Their marriage was dissolved by the Chief Magistrate’s Court at Nairobi in through a Judgment delivered on 27ᵗʰ June, 2024. In addition to dissolving Divorce Cause No. E216 of 2023 the marriage, the trial Court ordered the Appellant to pay the Respondent monthly maintenance in the sum of Kshs.45,000/=, and for the said maintenance to abate upon the Respondent’s remarriage. 2.Being dissatisfied with the award of maintenance, the Appellant lodged the present appeal. By a Judgment delivered on 31ˢᵗ July, 2025, this Court allowed the appeal and set aside the order for maintenance. 3.The Respondent has now moved the Court by the Notice of Motion dated 9ᵗʰ September, 2025 seeking, principally, a review and/or setting aside of the Judgment delivered on 31ˢᵗ July, 2025. She contends that the Judgment was founded on an error apparent on the face of the record. According to the Respondent, the Judgment proceeded on the basis that she testified before the trial Court that she was employed whereas her pleadings, witness statement, affidavit of means and evidence before the trial Court consistently showed that she was unemployed and had been a housewife throughout the marriage. 4.The Respondent further contends that the typed proceedings of the lower Court erroneously recorded her testimony as stating that she was “currently employed and just surviving” whereas the handwritten proceedings reflected that she stated that she was “currently unemployed and just surviving.” It is her position that the finding that she had secured employment formed the foundation upon which the appeal was allowed and that unless the Judgment is reviewed, she will suffer prejudice as she has no independent means of livelihood. 5.The application is supported by the Supporting Affidavit sworn by the Respondent on 9ᵗʰ September, 2025. 6.The application is opposed. The Appellant contends that the Respondent has not satisfied the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules. He argues that the alleged error does not constitute an error apparent on the face of the record and that the application is an attempt to re-open and re-litigate issues that were conclusively determined by the Judgment delivered on 31ˢᵗ July, 2025. 7.The Appellant further maintains that the proceedings relied upon by this Court accurately reflected the lower court record and that the Respondent failed to exercise due diligence in addressing any alleged discrepancy before the appeal was heard and determined. 8.The parties canvassed the application through written submissions which I have carefully considered together with the application, the affidavits on record, the lower Court record and the authorities cited. Analysis & Determination: 9.Having carefully considered the Notice of Motion dated 9ᵗʰ September, 2025, the Supporting Affidavit, Replying Affidavit, the rival Submissions, the Lower Court Record and the applicable law, the following issues arise for determination:a)Whether there is an error apparent on the face of the record in the Judgment delivered on 31ˢᵗ July, 2025;b)Whether the said Judgment ought to be varied. Whether there is an error apparent on the face of the record in the Judgment delivered on 31ˢᵗ July, 2025 10.The application before the Court is brought pursuant to Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules. Order 45 Rule 1 permits a Court to review its judgment or order, inter alia, on account of some mistake or error apparent on the face of the record. The said rule provides that:“ 1.Application for review of decree or order: 1.Any person considering himself aggrieved –a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. 2.A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 11.The principles governing review are now settled. In Mayodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243, as cited in Charles Ruto Karite v St. Mary’s Teachers Training College [2023] KEHC 5 (KLR), the Court, while discussing the decision in Nyamogo & Nyamogo v Kogo (2001) EA 174, stated:“... There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record.” 12.Similarly, in National Bank of Kenya v Ndungu Njau, Civil Appeal No. 211 of 1996, the Court held:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.” 13.In the Judgment delivered on 31ˢᵗ July, 2025, this Court stated at paragraph 23 that:“During the hearing, the Respondent told the Court that she had secured employment. In her words, she said, ‘I am currently employed and just surviving.’’ 14.I have revisited the lower Court record. The typed proceedings indeed record the Respondent’s evidence as:“I am currently employed and just surviving.” 15.However, the handwritten proceedings of 10ᵗʰ June, 2024 record the same evidence as:“I am currently unemployed and just surviving.” 16.I must observe that the handwritten proceedings are not entirely free from difficulty. The word appearing in the handwritten record bears signs of an apparent correction, alteration or overwriting. No initials, countersignature or explanatory note accompany the apparent alteration. The Court is therefore unable to ascertain when the alteration was made, by whom it was made, or whether it was made simultaneously with the recording of the proceedings. 17.Nevertheless, this Court has not been called upon in the present application to determine the provenance of the apparent alteration. The issue before the Court is considerably narrower. It is whether the record upon which the Judgment proceeded accurately reflected the Respondent’s evidence. Having compared the handwritten proceedings with the typed proceedings, I am satisfied that a discrepancy exists between the two records. That discrepancy found its way into the appellate record and was subsequently reproduced in my Judgment delivered on 31ˢᵗ July, 2025. 18.Discernibly, the discrepancy concerns a single word. Nevertheless, that word altered the meaning of the Respondent’s evidence entirely. The difference between being employed and unemployed is neither semantic nor insignificant. It goes to the Respondent’s financial circumstances, which formed the central question in the appeal. 19.Suffice to say, the discrepancy is ascertainable from the court record itself. It does not require a re-evaluation of contested evidence, a re-interpretation of the law, or a lengthy process of reasoning. I therefore find that the Applicant has demonstrated an error apparent on the face of the record within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Whether the said Judgment ought to be varied; 20.Having found that there is an error apparent on the face of the record, I now turn to consider whether the same warrants the review, setting aside, or variation of the Judgment delivered on 31ˢᵗ July, 2025. 21.The Respondent’s case is that had this Court appreciated that she testified that she was unemployed, rather than employed, it would not have allowed the appeal and set aside the order of maintenance. I have therefore revisited the entire record. 22.The Respondent consistently described herself as a housewife who depended on the Appellant during the marriage. In her Affidavit of Means dated 3ʳᵈ July, 2023, she stated that she had no other source of income and that she had relied on the Appellant for her upkeep. However, that was not the entirety of the evidence before the trial Court. 23.In paragraph 4 of her Answer to Petition and Cross-Petition dated 18ᵗʰ July, 2023, the Respondent pleaded as follows:“The Respondent states that she resides in Mombasa and has no gainful employment but offers private physical training as means of income in addition to the spousal support she receives from the Petitioner.” 24.In her witness statement, the Respondent further stated:“I expressed interest in the physical wellness field and began to use my spousal allowance of Kshs 4,000 a month to purchase equipment and supplements from Misfit and started re-selling them.” 25.Those statements were made by the Respondent herself. They formed part of the record that was before the trial Court and subsequently before this Court on appeal. 26.Prevailing jurisprudence on maintenance has been that the Court must examine the circumstances of the parties, their financial capacity and their ability to support themselves. In W.M.M. v B.M.L. [2012] eKLR, a decision cited with approval in MSV v SJV & Another [2015] eKLR, MN v JMK [2019] eKLR and referred to in CKN v DMO (Civil Appeal 21B of 2022) [2023] KEHC 26379 (KLR), the Court stated:“Under the Constitution, the respondent has a duty to support and maintain herself no less than the Petitioner has to support himself and there is no greater obligation on the part of the petitioner to support himself than there is on the part of the respondent to support herself. 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.” 27.The Court in CKN v DMO (Civil Appeal 21B of 2022) [2023] KEHC 26379 (KLR) further observed:“The concept of alimony is anathema to equality of men and women ………. parties must walk out with only scars of the marriage.” 28.Having reconsidered the record, I am unable to find that the correction of the Respondent’s evidence from “employed” to “unemployed” alters the outcome reached in the Judgment delivered on 31ˢᵗ July, 2025. 29.The corrected record shows that the Respondent described herself as unemployed. It does not show that she was incapable of working. On the contrary, the Respondent’s own pleadings and witness statement demonstrate that she was actively engaged in private physical training and in the sale of wellness products and supplements. She was therefore not a person who had withdrawn from economic activity altogether. The record discloses a person who had identified a field of work, pursued it, and derived income from it, however modest. 30.I have also not seen any evidence that the Respondent suffered from illness, disability, age or any other circumstance preventing her from working or pursuing the ventures she described. The fact that the Appellant had previously provided her with financial support, whether during the marriage or after separation, could not be a basis to impose upon him a continuing obligation to maintain her indefinitely after the dissolution of the marriage. As hitherto stated herein, the law requires the Court to consider the circumstances prevailing at the time the order is sought and the constitutional principle that spouses stand on equal footing before, during and after marriage. 31.Upon reconsidering the matter on the basis that the Respondent testified that she was unemployed, I remain of the view that the appeal was properly allowed. The error identified by the Respondent is real and I have so found. However, once the entirety of the record and the applicable law are considered, I am not persuaded that the Judgment delivered on 31ˢᵗ July, 2025 ought to be reviewed, set aside or varied. Disposition 32.Accordingly, I make the following orders:a)The Notice of Motion dated 9ᵗʰ September, 2025 is hereby dismissed.b)The Judgment delivered on 31ˢᵗ July, 2025 shall remain undisturbed.c)Each party shall bear own costs of the application. 33.It is so ordered. DATED AND DELIVERED AT NAIROBI ON THIS 22ND DAY OF JUNE, 2026.………………………C. KENDAGORJUDGEIn the presence of:Court Assistant: Ms. Beryl AnindoMr Mwaura Advocate for the Appellant/RespondentNo attendance for the Respondent/Applicant