[2019] KEHC 12162 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

CIVIL APPEAL NO. 22 OF 2017

CAO.....................................................................................APPELLANT

VERSUS

SNN...................................................................................RESPONDENT

(An Appeal from the Judgment of the Learned Senior Principal Magistrate L. M. Wachira (Mrs.)

delivered on 17th day of March, 2017 in Divorce Cause No. 440 of 2015. Milimani Commercial Courts)

JUDGMENT

1. Honourable L. M. Wachira delivered a judgment in Divorce Cause No. 440 of 2015, 17th of March 2017.

2. The Appellant was partly aggrieved by the Trial Magistrates judgment in particular he was aggrieved that the court allowed the Respondent continued stay in the matrimonial home after dissolution of the marriage; by the order for maintenance of Kshs.160,763 per month over and above rental income received by the Respondent from a matrimonial property and the court’s failure to allocate the Respondent any financial contribution towards the education of the children.

3. In the submissions on behalf of the Appellant it was urged that the trial court erred by restoring the Respondent back to the matrimonial home, though the said house did not form part of the matrimonial home for her, and for the fact that she had moved out long before filing of the divorce cause.

4. As regards the issue of maintenance, it was contended that since the Appellant paid the Askari, caretaker, the gardener and utilities no further maintenance should have been paid to the Respondent who is a business woman and has rental income.

5. Further it was contended that the Appellant ought not to maintain a divorced wife who is capable of taking care of herself.

6. On the issue of parental responsibility, it was urged that that parental responsibility ought to be shared, yet the trial court did not place any responsibility on the respondent.

7. In support of the Appellant’s case counsel relied on;

i. Fathiya Essa vs Mohamed Alibhai Essa C.A. No. 101 of 1995 unreported.

ii. Lita Violet Shephard vs Agnes Nyambura Nunga C.A. No. 91 of 2017.

iii. Bromley’s family law.

8. On behalf of the Respondent it was contended that the appeal lacks merit and is frivolous. Counsel citedArticle 45(3)of theConstitution on equality of partners during and after marriage.

9. Further it was submitted that the Appellant has not demonstrated any prejudice he has suffered with the Respondent’s continued stay at the matrimonial home where she resides with the children of the marriage.

10. It was also contended that the sum of Kshs.160,763 as maintenance is reasonable considering the standard of living the Respondent is accustomed to. Counsel cited the case of Josephat Kabinga Wagocho vs Jacinta Wangithi Kabinga [2007] eKLR.

11. In support of the judgment counsel made reference to Matrimonial causes Act and several authorities in a bid to prove the Respondent’s interest in the matrimonial property.

12. I will not dwell with the interest of the parties in the property in Karen referred to in this appeal as matrimonial home as the issue of ownership, and respective interest of each party is subject of a separate cause. I will for now confine myself to the continued stay and occupation of the same by the Respondent following the judgment subject matter of this appeal.

13. The trial court considered the amended petition; answer to the petition and cross petition and the evidence of the petitioner now the Respondent in arriving at its decision as the Appellant then Respondent opted not to adduce any evidence.

14. In her judgment the trial magistrate stated in part.

“The Respondent opted not to lead oral evidence and relied on the pleadings before court. The court is to determine whether the parties are entitled to the orders sought. In making a determination I will be guided by the reading of the petition, the answer to the petition, and the record of testimony and evidence of the Petitioner.”

15. In the case of Ankush N. Dhuri vs Haier Appliance India PVT Ltd case No. CC/54 OF 2018 the court stated:

“mere pleadings without evidence cannot be considered. Pleadings are not evidence. Pleadings make out a case for adjudication but it is evidence that sustain or defeats it upon final hearing.”

In CMC Aviation vs Cruis Arif Ltd (1) (1978) eKLR 103Madan

JA (as he then was) stated as follows:

“Pleadings contain the averments of the three concerned until they are proved or disapproved, or there is admission of them or any of them by the parties. They are not evidence and no decision could be founded upon them. Prove is the foundation of evidence.”

In Karuru Munyororo vs Joseph Nduma Murage & Another Nyeri HCCC No. 95 of 1988 Makhandia J (as he then was) held that:

“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted.

It was thus credible and it is the kind of evidence that a court of law should be able to act upon.”

16. The respondent asked for Kshs.300,000/= as maintenance and up keep for herself and 3 children, she produced receipts in support of her bills. She informed the Court that the farming she did in Kitale is for consumption of the family. She further disclosed that she received rental income of Kshs.50,000/= a month.

17. In arriving at her decision the trial court observed that the Appellant then Respondent in an interlocutory application had indicated that he provides for food and running expenses of the house. In its judgment the trial court simply directed him to continue doing so but in a structured manner in allowing the following expenses be shouldered by him and by requiring the appellant to make the funds available to the respondent as follows;

Food – Kshs.20,000/-

Caretaker – Kshs.15,000/=

Gardener – Kshs.10,000/=

Electricity – Kshs.10. 000/=

Water – Kshs.7,000/=

Fuel and maintenance - Kshs.20,000/=

House insurance – Kshs.58,763.

18. In her evidence the respondent informed the court that she was in occupation of the matrimonial home at the time the case was being heard. The trial court had this to say.

“The court has given orders that the Petitioner remains in occupation of the matrimonial property in Karen. Those orders remain valid.

………The question as to who of the parties is entitled to the rights or a share in respect of the house, is a question that can only be determined in a suit relating to matrimonial property.”

19. The trial court and in my view rightly so, declined to evict either party from the home they occupied as husband and wife pending determination on the division of matrimonial property.

The issue of who leaves, who owns what share and what becomes of the matrimonial property was not in issue before the trial court. These issues are to be dealt with should the court is moved under the Matrimonial Property Act. In this regard I do not fault the trial court’s decision not to interfere with the respondent’s occupation. I indeed affirm the decision as relevant court will in time make a determination on the subject.

20. Parties failed to file their respective affidavit of means and in arriving at a sum for maintenance the court relied on the documents and evidence by the respondent. Most of the monies awarded were towards the maintenance of the matrimonial home which the Appellant claims to reside in as well. The only sum that was to benefit the Respondent directly is food Kshs.20,000/=, fuel and maintenance Kshs.20,000/=. Total Kshs.40,000/=.

21. I also take note that the entire family resides in the home and the fact that in granting the maintenance the trial court took into account the rent at the disposal of the Respondent and the life style of the parties. Indeed, the trial court being alive to the fact that the respondent collects rental income held that for travel up country and entertainment the Respondent would use the said rental income she collects.

22. Once more the court arrived at the decision with the evidence before it as the Appellant failed to lay bare his income or participate in the trial. In the circumstances this court therefore finds no reason to interfere with the judgments of the trial court on this score.

23. As for parental responsibilities no specific orders were made capable of being reviewed or set aside and the ground must therefore fail.

24. For the reasons set herein above the Appeal is dismissed with costs to the respondent.

SIGNED DATED AND DELIVERED IN OPEN COURT THIS 28TH DAY OF NOVEMBER, 2019.

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ALI-ARONI

JUDGE