[2017] KEHC 6438 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL APPEAL NO. 37 OF 2014

H S C ………................................. APPELLANT

VERSUS

Z F M ...….................................... RESPONDENT

(Being an appeal from the judgment/decree of the Honourable Kadhi Salim M. Salim in KCC No. 15 of 2014 delivered on 17th November, 2014)

(Appeal also heard by Hon. Sheik Abdulhalim H. Athman - P. Kadhi of Mombasa and Hon. Sheikh Talib Bwana Mohamed - Kadhi of Kilifi)

JUDGEMENT

The appellant and the respondent got married in September 2013. The respondent filed her plaint dated 25. 4.2014 before the Kadhi’s Court seeking the dissolution of the marriage, edda maintenance, past maintenance and dowry. The Hon. Kadhi in his judgement dated 17. 11. 2014 dissolved the marriage. The Kadhi also assessed dowry at Kshs.175,000/=. He awarded the respondent a monthly sum of Kshs.8,000/= as maintenance, settlement of hospital bills plus costs. It is that judgement which is the subject of the appeal.

The grounds of appeal are: -

1. That the learned Kadhi erred in law and in fact in awarding dowry in form of furniture worth Kshs.175,000/= in absence of any evidence to prove the same.

2. That the learned Kadhi erred in law and in fact in awarding maintenance of Kshs.8,000/= per month in absence of evidence that the appellant has the capacity to pay the same.

3. That the learned Kadhi erred in law and in fact in failing to consider the appellant’s evidence.

4. That the learned Kadhi erred and in fact in ordering the defendant to pay hospital bills in the absence of proof that such bills were incurred.

5. That the learned Kadhi erred in law and in fact in failing to consider the appellant’s submissions.

6. That the learned Kadhi erred in law and in fact in holding for the respondent in the absence of proper evidence.

7. That the learned Kadhi erred in law and in fact in dismissing the appellant’s witnesses.

8. That the learned Kadhi erred in law and fact in failing to apply the relevant law to the existing facts.

Mr. Hamza, counsel for the appellant submitted that the law of evidence on proving facts was not followed. The dowry was assessed at Kshs.175,000/= without proof. There was no evidence that the appellant had agreed to pay dowry totaling that amount. There is no basis for the award. There was evidence that the appellant was providing maintenance but it was dismissed. The award of Kshs.8,000/= monthly is not based on the appellant’s ability to pay. The appellant’s income was not established. An order for payment of medical bills was made. The judgement is not based on the law.

Miss Emukule, counsel for the respondent opposed the appeal. Counsel submit that the Kadhi considered the market value of the furniture that was agreed as the dowry. The furniture was assessed at Kshs.175,000/=. It is further submitted that the respondent sought maintenance of Kshs.15,000/= monthly but that amount was reduced to Kshs.8,000/= by the trial court. It is the responsibility of the appellant to take care of the child and pay the hospital bills.

The appeal is not disputing the dissolution of the marriage. The appeal is against the financial assessment of the dowry and maintenance. Before the trial court the respondent testified that she wanted the marriage to be dissolved. She was pregnant and by the time the case was being heard she was living with her mother. She asked the court to dissolve the marriage and to provide the dowry. It is her evidence that the dowry was furniture. The furniture was composed of a bed, cupboard and dressing table. She also sought Kshs.15,000/= as monthly edda maintenance. PW2 M A is the mother to the respondent. She testified that the marriage was held on 25. 9.2013. The parties disagreed and the respondent went to live with her while she was pregnant.

On his part the respondent testified that he paid the dowry of Kshs.100,000/=. He bought clothes and gold for the respondent. There was a big wedding conducted. He used to provide for his wife and even when she went to live with her mother he used to send money and food items for maintenance. Furniture did not form part of the dowry. The respondent took the gold when she was leaving. The agreed dowry was Kshs.100,000/= and it was paid in full.

Ibrahim Lazaro Lamaritestified as the first witness for the appellant. His evidence is that the respondent wanted to go back to her mother and sometimes in April 2014 she was driven back to her mother at Majengo. Ignes Mchana Nyambu also testified for the appellant. In early April 2014 at about 7. 00 pm she instructed the driver at her place of work in Malindi to take the respondent to her mother in Majengo. The respondent was driven home as it was dark and not safe to walk. Mutawali Kupasi is a boda operator. His evidence is that he was sent twice by the appellant to take food staff to the respondent’s mother. That was in February and March 2014. Gladys Halwa also testified for the appellant. She used to be the house maid for the parties. Her evidence was that the appellant used to provide for his family.

The appeal raises the issue of dowry and maintenance. The appellant contends that dowry was Kshs.100,000/= and it was fully paid. He also states that he bought clothes and gold which the respondent took when she was leaving the appellant.

The issue as to what was agreed to be the dowry during the marriage is becoming a chronic one. It is advisable for the Kadhis who solemnise Islamic Marriages to clearly indicate the agreed dowry either on the marriage certificate or in their records. The marriage was solemnized on 29. 9.2013. The case before the Kadhi was filed on 29. 4.2014. Judgement was delivered on 15. 10. 2014. Within a period of seven months the marriage had deteriorated and the respondent had already left the appellant’s house and was living with her mother. The evidence on the dowry is quite at variance. The appellant maintains that there was a big wedding and he fully paid the dowry of Kshs.100,000/=. That evidence has to be weighed against that of the respondent who alleged that the dowry was furniture. The value of the furniture is not given. The Kadhi who solemnized the marriage did not testify. I am certain that he too did not know what the dowry was.

My view on this issue is that since under Islamic Law dowry is compulsory and is payable even after parties have divorced, it should be known and declared at the very beginning of the marriage. The husband should be in a position to know whether he has fully paid the dowry or he is still indebted. The extent of the husband’s liability to her wife in form of dowry should be known. It will be unreasonable for a husband to buy his wife expensive gifts yet he is indebted to his wife for unpaid dowry or dowry balance of less than a third the cost of the gifts. On the other hand, the wife should know that her husband has not settled her dowry and she should know what is due to her from her husband inform of the dowry.

The parties lived together for less than seven months. The evidence shows that the respondent left the matrimonial home in early April, 2014. The husband maintains that he fully paid the dowry. Apart from the respondent’s statement that dowry was not paid, there is no other evidence.

Since there is no reliable evidence as to what amounted to the dowry and whether dowry was paid or not, I do find that part of the dowry was paid. I do set aside the Kadhi’s assessment of dowry as Kshs.170,000/= and replace it with Kshs.30,000/=.

On the issue of past maintenance, there is enough evidence by the appellant that he used to send food to the respondent when she went back to her parent. Independent witnesses testified to that effect. The learned Kadhi did not award any amount for past maintenance. On the issue of hospital bills, I do find that the same are payable. The child was born and the appellant should settle the bills.

It is further contended that the monthly maintenance of Kshs.8,000’/= is also excessive. On 5. 2.2015 I ordered that the appellant pay Kshs.5,000/= as monthly maintenance. No one has complained that that amount is too high or too low. I do find that a monthly payment of Kshs.5,000/ as maintenance for the child is fair. The sum of Kshs.8,000/= is hereby set aside and replaced with Kshs.5,000/= monthly.

In the end, I do find that the appeal is merited and is hereby allowed in the above terms. The balance of dowry is assessed at Kshs.30,000/=. No interest is payable on this amount. The monthly maintenance for the child is reduced from Kshs.8,000/= toKshs.5,000/= monthly. Each party shall meet his/her own costs of the appeal.

Dated, signed and delivered in Malindi this 13th day of March, 2017.

S.J. CHITEMBWE

JUDGE