[2010] KEHC 2819 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

Civil Appeal 12 of 2002 JANE WATHITHA……………………………………………………….APPELLANT

VERSUS

BERNARD NJAGI GITUI…………………………………………….RESPONDENT

J U D G M E N T

Jane Wathitha Njagi, the Appellant in this appeal was the Respondent in Kerugoya Civil Suit No.300 of 2000. The Respondent was her husband.He sued her by way of plaint and sought 2 orders:-

(a)An order dissolving the marriage between him and the Defendant

(b)An order requiring the defendant to vacate his land and stop interfering with his properties forthwith.

He also prayed for costs for the suit.In his plaint, he stated that he married the Appellant in 1987 under Kikuyu customary law and they had 5 issues of that marriage.His claim was based on cruelty as the ground for divorce.He has particularized the grounds of cruelty in paragraph 7 of the plaint but I find it unnecessary to replicate the same here.

On her part, the appellant asserted that their marriage was in 1980 and not 1987 and that they had 8 children together.She denied the allegations of cruelty and urged the court to dismiss the plaintiff’s suit with costs.She appeared in person but the plaintiff was represented by counsel.After hearing the viva voce evidence from both sides, the learned trial magistrate entered Judgment in favour of the plaintiff and granted all the orders sought.I must say that the proceedings in this appeal were so badly typed that most them do not actually make sense.In trying to get a clearer picture as to what transpired before the trial court, I have had to revert to the original handwritten notes of the magistrate which are almost undecipherable.I believe however that the order made by the magistrate was for the defendant/appellant to “vacate” the plaintiff’s land and not to “value” the same as indicated in his Judgment.

Being aggrieved by the learned magistrate’s Judgment, the Defendant filed this appeal.She has asked the court to allow the appeal.The petition of Appeal is silent on what orders this court should grant if the appeal is allowed.Should the Respondent be forced to take her back as his wife?From the written submissions however, it appears that the appellant was aggrieved by the order that she vacates the plaintiff’s home and the fact that no provision was made for the issues of the marriage.

I have reconsidered the evidence tendered before the trial court.Both parties adduced evidence to the effect that they had taken each other to court in criminal proceedings.The Appellant was said to have deserted her matrimonial obligations and according to the learned trial magistrate, these included the duty to submit and to obey ones husband.I must say I agree with counsel for the appellant on this point.The learned trial magistrate appears to have imported his views on marriage into this case to the prejudice of the appellant.Failure to “submit and obey” were not some of the particulars of cruelty pleaded in the plaint.The learned trial magistrate did make other unpalatable and uncalled for comments that clearly showed that he was biased against the appellant herein.I do not intend to go deeper into that issue but as an impartial arbiter, it was wrong for the magistrate to show such open bias.He should have forgotten that he was ‘male’ and arbitrated and reasoned like a Judicial Officer which unfortunately he failed to do.

From the evidence of the trial court however, it is evident that the Appellant and the Respondent could not live together as husband and wife.Once they started suing each other in criminal proceedings it became clear that they became adversaries and it was not possible for them to remain together as husband and wife unless they chose to.It is clear therefore that their marriage had irretrievably broken down and was beyond salvage.I further note that since the orders of dissolution of the marriage was made, it is now over 8 years ago.The parties must have moved on and the court cannot force them to get back together.The order of dissolution of the marriage cannot therefore be reversed.

On the issue of the Appellant being ordered to vacate the Respondent’s land, I am constrained to say that the learned magistrate treated her as a mere trespasser on that land whose eviction was to be granted as a matter of course, or as a licensee whose licence had been cancelled.The Appellant was the Respondents wife of many years.Even though the number of their children is disputed, the Respondent admits having had 5 children with her.These children were not considered at all when the marriage was dissolved.Their right to be provided for, and their right to survival were totally ignored by the learned magistrate.He did not even mention them in his Judgment. Were they to vacate the land too? Were they trespassers, licencees or tenants at will who had no rights whatsoever in that marriage?That was wrong. When a couple divorces, and there are issues to the marriage, it they are under the age of 18 years, then their best interests must be taken into account.In this case, they appear to have been completely forgotten.This was contrary to the law.It created an injustice on the children of the marriage who were neither responsible for their parents getting married in the first place or getting divorce later.

I must therefore interfere with the learned trial magistrate’s Judgment. This appeal therefore succeeds in part.Orders No.2 and 3 of the decree relating to the appellants vacating the said land and on payment of costs are hereby set aside.In their place, I order that that Appellant and her children have a right to remain on the parcel of land in question until issues of matrimonial property, if any, or the rights of the children in that marriage (their ages were not indicated in the plaint) are determined.On the issue of costs, this being a matrimonial matter and given the circumstances surrounding the case, I order that each party bears its own costs of this appeal and the subordinate court case.It is so ordered.

Delivered, dated and signed at Embu this 11th day of May 2010.

In presence of:-Mr. Kariithi and Mr. Magee for the parties

.W. KARANJA JUDGE. n presence of:- Mr. Kariithi Mr. Magee for the parties.