[2014] KEHC 4516 (KLR)
The court found that the continued attachment of the applicant's salary was unjustified, as there was no longer a marital relationship between the parties and no dependent child within the meaning of the Children Act. The respondent had received maintenance for over eight years, and the child for whom maintenance...
Source-derived case information.
- Citation
- [2014] KEHC 4516 (KLR)
- Parties
- Applicant: J N A; Respondent: S O
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 8 of 2012
- Procedural Posture
- Constitutional Reference / Ruling
- Outcome
- Reference granted; salary attachment stopped; previous orders set aside; no order as to costs.
- Legal Topics
- Maintenance Orders, Separation, Salary Attachment, Jurisdiction of Magistrate Courts, Fundamental Rights, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J N A
Applicant
S O
Respondent
Procedural Posture
Constitutional Reference / Ruling
Legal Issues
- 1 Whether the order of the Senior Resident Magistrate in Vihiga Separation and Maintenance Cause No. 4 of 2004 was unconstitutional and violated the applicant's fundamental rights.
- 2 Whether continued attachment of the applicant's salary was justified in the absence of a subsisting marital relationship or dependent child.
Ratio Decidendi
The court found that the continued attachment of the applicant's salary was unjustified, as there was no longer a marital relationship between the parties and no dependent child within the meaning of the Children Act. The respondent had received maintenance for over eight years, and the child for whom maintenance was initially sought was now an adult. The court held that perpetuating the salary deductions would amount to an infringement of the applicant's rights, particularly in the absence of a valid legal basis for continued maintenance. The orders of the Vihiga Senior Resident Magistrate's Court were therefore set aside, and the salary attachment was stopped.
Court Disposition
Reference granted; salary attachment stopped; previous orders set aside; no order as to costs.
Orders
- The attachment of the applicant's 1/3 salary is hereby stopped.
- The orders made by the Vihiga SRM's Court in Separation and Maintenance Cause No. 4 of 2004 are hereby set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CONSTITUTIONAL REFERENCE NO. 8 OF 2012
J N A ………… APPLICANT
V E R S U S
S O ………… RESPONDENT
R U L I N G
The applicant filed the Notice of Motion dated 10. 4.2012 seeking orders that the order of the Senior Resident Magistrate in Vihiga Separation and Maintenance Cause No.4 of 2004 be declared as unconstitutional and a violation of the applicant’s fundamental rights. The applicant contends that the order was made without jurisdiction. The application is supported by the applicant’s affidavit sworn on the same date. The respondent filed a replying affidavit sworn on the 12. 11. 2012. Parties relied on their respective pleadings.
The background information is that the parties herein were married under the Marriage Act on 27. 11. 2000. The respondent filed a Separation and Maintenance Cause No. 4 of 2004four years after the marriage. The court granted separation and ordered that the applicant provide monthly maintenance totaling KShs.7,500/= to the respondent. From the affidavit of the respondent it is clear that he failed to pay that amount and an application to attach 1/3 of his salary was made and granted. For the last eight years the applicant’s salary has been deducted and by March 2012 a total of KShs.225,500/= had been paid. The applicant contends that they had no child and since then everybody has been living his separate ways. He would like to have the attachment lifted.
On her part the respondent contends that the applicant failed to pay maintenance and an order to attach his salary was made in November 2007. The applicant appealed but the appeal was dismissed since it had been filed out of time. The applicant filed an application to vary the initial court order but the same was dismissed on 23. 11. 2012. The applicant took parental responsibility of the respondent’s son who appears to have been born before the marriage.
It is clear that the parties are no-longer living as husband and wife. It is not clear to me why none of the parties has filed for divorce. For the last eight years the respondent has been receiving 1/3 salary of the applicant. There is no child out of the relationship. When the matter was filed before the Vihiga court the respondent indicated that the applicant had failed to provide for upkeep for her son N M who aged 11 years at that time. By now the child is over 20 years and does not fall within the definition of a child under the Children Act. It is also clear that the respondent is living on her own and she should not perpetually benefit from the applicant’s salary. She has had enough of that money and should be satisfied with what she has so far received. It would not be prudent to order a refund of the money so far paid. The endless deduction of the applicant’s salary goes against his rights. It can be concluded that although there is no divorce there has been no relationship between the two parties for the last eight years. Each party should benefit from his/her own sweat. Although the appeal and application for review were dismissed, it does not mean that the deduction of the applicant’s salary should continue until his retirement.
In the end I do find the Reference to be merited and the same is granted. The attachment of the applicant’s 1/3 salary is hereby stopped and the orders made by the Vihiga SRM’s Court in Separation and Maintenance Cause No. 4 of 2004 are hereby set aside. No orders as to costs.
DATED AT KAKAMEGA THIS 19TH DAY OF JUNE 2014
SAID J. CHITEMBWE
J U D G E