[2017] KEHC 932 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO.12 OF 2016

BETWEEN

J A O…………….…………………. APPELLANT

AND

J M ……………….……………… RESPONDENT

(Being an appeal from the judgment and orders of SRM’s Court Homa Bay Divorce Cause No.17 of 2014 - Hon. N. Kariuki, RM dated 09/05/2016)

JUDGMENT

1. J A O(appellant) was married to J M (respondent) under Luo Custom in 1992. Their marriage had problems stemming from the fact that the appellant was barren. Consequently the respondent married a second wife – this only escalated matters and resulted in the respondent filing for and obtaining divorce in the magistrate’s court at Homa Bay. He cited appellant’s cruelty, and violence, unresourceful and demanding nature, desertion, lack of conjugal rights, being nagging and quarrelsome and untraditional/taboo conduct as his grounds for seeking divorce.

2. The respondent had also sought orders of permanent injunction restraining appellant by herself, agent, or servant from entering into his rural home, work place, rental premises or in any other way interfering with him and his 2nd wife, child or parents.

Apart from the order annulling his marriage to the appellant, the court also granted the restraining orders sought.

3. The respondent’s case was that after living with the appellant from the year 1992 to 2012 at KALANYA KANYANGOlocation in Homa Bay, she deserted their matrimonial house for SONDUin NYAKACH location. Prior to that the couple had several domestic disputes laced with naggings, threats of violence, allegations of adultery, forcing them to sleep in separate bedrooms.

4. On several occasions the appellant made several suicide attempts in allegations that the neighbours were gossiping about her childless state. She even threatened to set ablaze their own houses on the plot they lived on, and had several cases of quarreling and fighting with neighbours. This led to matters ending up at the police station and even the courts, and the respondent had to use a lot of money.

5. Although the respondent had taken her for medical interventions without success, the appellant kept on moving from one man to another to be prayed for to get a child, and she eventually deserted their matrimonial home in search of a child.

The respondent stated that it was during those stressful and lonely moments that he married a 2nd wife with a child and set up a home for her in KANO.

6. This opened a new avenue for conflict as the appellant constantly visited the home, attacked and inflicted injury on both the respondent and the co-wife. The appellant also went to the home of her co-wife’s parents and caused havoc, even threatening to commit suicide there.

He stated that all efforts to make their 20 year marriage work had failed, and all arbitrations were frustrated by the appellant.

7. The appellant denied ever disserting their matrimonial home and explained that in March 2014 she left to seek ways for raising funds for further treatment and breast-cancer. She denied all the purported misconduct, saying the only other time she was away from the matrimonial home were the times she attended Kenyatta National Hospital for treatment of her condition, and when she resided in Sondu while doing business –with the consent and authority of the respondent.

8. The appellant further stated that it was the respondent who secretly emigrated to Rodi Kopany and deserted their matrimonial home.

9. At the hearing the respondent told the trial court that while attending classes at Great Lakes University in Kisumu in June – July 2012, he returned home to find the appellant gone. He lamented that appellant would constantly use the excuse of attending her relatives’ burials, to leave the matrimonial home. Upon inquiries from her brothers he realized there were no such burials. When he questioned her, she explained she had attended a ROHO sect session for prayers so as to get a child, and that she did not tell him because she knew he would not approve. She also engaged in use of herbal medicine to try for a child.

10. The respondent learnt from a neighbor that whenever he left for classes over the weekends, she would leave the home – so he feared she would infect him with HIV Aids. It was the respondent’s evidence that the appellant refused to accept her childless state, and their disagreements led to seeking intervention from police, neighbours, the chief and even advocates. He described their relationship as “horrible”with appellant having violent outburst.

11. He also gave several instances when the appellant attempted suicide and even left a suicide note and his many interventions to save her life.

He also referred to an instance when the appellant sprayed their house with petrol, threatening to burn it.

12. The respondent referred to an occasion when she stormed his 2nd wife’s house in Kano and became violent, biting him – then she rushed to the Ahero police station and claimed he had assaulted her. He ended up being booked at the police station although later he was released on bond.

13. There were instances when the appellant caused panic by pretending to be dead, then when the respondent rushed to her side, she said she just wanted to see whether he was awake.

In the middle of it all the appellant stated:-

“… The case has stayed long. I am ready to grant him the divorce. All I ask is that he provides me with my share of the matrimonial property.”

14. However the trial magistrate declined to grant this request, so the appellant testified – basically confirming that their differences stemmed from her childless state and the steps she had taken in pursuit of getting a child – some of which did not meet the respondent’s approval.

She lamented that the respondent had failed to give her financial support even when she needed medical attention, hence her resorting to herbal medicine.

15. She confirmed being deeply hurt when she learnt of his marriage to another woman which she found extremely cruel, so she confronted the respondent on the issue. It was her contention that upon raising the issue the respondent beat her up, that is why she reported him to the police. She denied attempts at arson. The appellant also denied the claims of suicide attempts, saying each time she encountered the respondent, he had tell her to leave – that is how she looked for a place to live and do business in Sondu. She accused him of abandoning her in her hour of need and suggesting that she gets a counselor.

16. At the trial on cross examination the respondent accused the appellant of infecting him with a venereal disease and refusing to “behave like a married woman” adding that:-

“I had to invite your father to tell you how to live in marriage.

The respondent expressed his ultimate disdain for the appellant’s company saying:-

“The probation arbitration in Nyando also failed because you continued badgering me with violence. I gave her the rent for the 2nd rental house when she went to the chief to demand half of the matrimonial property… even when I offered to sell my plot in Nairobi to build her the house in Rongo she still follows me around.”

17. This frosty relationship was confirmed by the appellant who said that even after she underwent surgery the respondent refused to give her financial assistance. She also alluded to the respondent shunning her company claiming she had transmitted HIV Aids to him. She stated:-

“He denied me as his wife. Even on the death of my brother and other close relatives, he refused to come to mourn with me …. I don’t mind if he gets the divorce. He should look for another husband for me. If not, the court should not grant the divorce.”

She denied suggestions by the respondent that she had sex with someone else in her quest for a baby.

She also accused the respondent of taking away the house hold goods she had bought and giving them to the 2nd wife.

18. The trial magistrate in her judgment pointed out that cruelty, desertion and an irretrievable breakdown of the marriage stood out in the case. She found that claims of desertion were adequately explained by the appellant who stated that she was away from the matrimonial home in pursuit of business endeavors and treatment of a terminal illness.

The trial magistrate held that there was nothing to prove that the appellant willfully deserted their home.

In the same vein the trial court found that the respondent was the deserter as he moved to Rodi and later to KANO to establish another home with another wife.

19. As regards cruelty the trial magistrate found that the appellant’s suicide attempts and attacking her co-wife with threats to burn down the house were incidents of misconduct of such grave nature that they amounted to psychological torture and cruelty. The trial magistrate held that the marriage was fraught with pain and suffering and any attempts at reconciliation would only subject the pair to further psychological torture. Consequently the court pronounced the marriage as irretrievably broken down.

20. The trial court issued permanent injunction in favour of the respondent from accessing the respondent’s rural home, work place, rental home or in any other way interfering with him and his 2nd wife, child or her parents.

21. The appellant contested the findings on grounds that the trial magistrate ignored the evidence favourable to her and treated the same superficially.

The trial magistrate is faulted for purporting to give orders in the division of matrimonial property without having jurisdiction to do so, and that her orders in effect forced the appellant out of her residential house without any justifiable cause. The trial magistrate is also accused of acting on the wrong principles in arriving at her decision which is described as unfair, unjust and fraught with illegal sanctions.

22. The appeal was disposed of by way of written submission where the restraining order issued is termed as offensive as it’s effect is to give the respondent an upper hand in dealing with the matrimonial property in a manner that would be prejudicial to the appellant. It is submitted that the restraining order gives the respondent an opportunity to dispose of their rental property including the one she occupies once he evicts her from there. It is pointed out that the rental property in question is where the family has kept household items and the other units are occupied by the tenants which form part of the matrimonial property. It is contended that the appellant will suffer irreparably if the orders remain in force.

23. The appellant’s counsel urged the court to be guided by Section 6of the Matrimonial Property Act of 2013regarding the definition of what constitutes matrimonial property.

It is also argued thatSection 7of theMatrimonial Property Actpays regard to the issue of each spouse’s contribution, so the restraining orders must be set aside.

24. In opposing the appeal, it is submitted that the orders were properly issued to restrain the appellant from interfering with the respondent and they do not amount to division of matrimonial property. The respondent drew the court’s attention to the trial court’s record where the trial magistrate pointed out that division of the matrimonial property as requested by the appellant could not be entertained by her court as it ought to constitute a separate cause. The respondent further argued that the trial magistrate’s orders did not force the appellant out of her residential house and that the appellant’s interpretation is misleading.

25. It is the respondent’s contention that the appellant confirmed she had lived in many different towns and houses during their marriage, and the trial court confirmed the interim orders since the pair had been separated for years.

26. From the memorandum of appeal, it does not appear to me that the appellant is aggrieved by the order granting divorce – her grievance is with regard to the permanent injunction that restrains her from entering the plaintiff’s rural home, work place, rental premises or in any other way interfering with him and his 2nd wife or her parents.

27. Certainly this was not distribution of property per se, but the effect of it restrained the appellant indefinitely from accessing properties without the court establishing whether such properties formed part of the matrimonial property. Did she for instance have a house erected in the respondent’s rural home? Has the respondent set up a house for her co-wife in the same compound as hers in the rural home? The issue of the rental property within Homa Bay was addressed earlier in a ruling delivered by this court on 30th March 2017, and one of the observations made by this court was for the appellant to seek orders restraining the respondent from disposing of property pending hearing of her claim for distribution of matrimonial property.

28. I acknowledge that the order under reference creates a bottle neck for the appellant as she may now not be able to access the matrimonial home whenever that one may be. It was noted that one of the rental premises was being used as a store by the entire family to keep their household items.

29. The restraining order then limits the appellant from getting access to whatever property she may have therein. I think the order was rather general – it would have been prudent to establish which properties the appellant was occupying or using, and which would warrant the restraining orders. I have no doubt in my mind just from my re-evaluation of the evidence that the appellant and the respondent certainly need to be kept apart physically – for their own physical and emotional well being. I therefore find it prudent to vary the order and grant the injunctive orders restraining appellant from entering into the respondent’s workplace, rural house where he lives with the 2nd wife, rental premises while he lives, or in any other way interfering with the respondent, his 2nd wife, child or her parents.

30. This order is pegged to the condition that the appellant must file a suit for distribution of matrimonial property within 30 days hereof and have the matter listed for direction for purposes of hearing and determination within the 30 day period.

31. It is only to that extent that the appeal succeeds. Each party shall bear its own costs.

Delivered and dated this 6th day of November, 2017 at Homa Bay

H.A. OMONDI

JUDGE