[2014] KEHC 2633 (KLR)
The court found that there was a genuine dispute as to whether the Petitioner had complied with the maintenance order, as the Petitioner provided evidence of payments and the order in question was not specific as to the amount outstanding. The court held that the only way to resolve the dispute was to have both...
Source-derived case information.
- Citation
- [2014] KEHC 2633 (KLR)
- Parties
- Petitioner: LT. COL. J K N (RTD); Respondent: P T K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 79 of 2005
- Procedural Posture
- Divorce Cause / Ruling on Application for Committal to Civil Jail for Alleged Non Payment of Maintenance
- Outcome
- Application for committal to civil jail declined; parties directed to appear before Deputy Registrar for reconciliation of accounts.
- Judges
- LK Kimaru
- Legal Topics
- Maintenance Orders, Child Education Expenses, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
LT. COL. J K N (RTD)
Petitioner
P T K
Respondent
Procedural Posture
Divorce Cause / Ruling on Application for Committal to Civil Jail for Alleged Non Payment of Maintenance
Legal Issues
- 1 Whether the Petitioner failed to comply with the court's maintenance order and is in arrears of Kshs.486,000/-.
- 2 Whether the Petitioner should be committed to civil jail for alleged non-payment of maintenance.
- 3 Whether a reconciliation of accounts is necessary to determine compliance with maintenance orders.
Ratio Decidendi
The court found that there was a genuine dispute as to whether the Petitioner had complied with the maintenance order, as the Petitioner provided evidence of payments and the order in question was not specific as to the amount outstanding. The court held that the only way to resolve the dispute was to have both parties present all relevant documentation for a reconciliation of accounts before the Deputy Registrar. Only after such reconciliation could it be determined whether any arrears exist and, if so, the amount. Accordingly, the application for committal to civil jail was premature and could not be granted at this stage.
Court Disposition
Application for committal to civil jail declined; parties directed to appear before Deputy Registrar for reconciliation of accounts.
Orders
- Parties to appear before the Deputy Registrar on 6th October 2014 for reconciliation of maintenance payments.
- Parties at liberty to file documents in support of their positions.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
FAMILY DIVISION
DIVORCE CAUSE NO.79 OF 2005
LT. COL. J K N (RTD)......................................................PETITIONER
VERSUS
P T K………………………….………................................RESPONDENT
RULING
Before me is an application filed by the Respondent seeking to have the Petitioner committed to civil jail for failure to obey an order that was allegedly earlier issued by this court. The Respondent stated that the Petitioner had failed to settle the sum of Kshs.486,000/- which was ordered paid by the court. The Respondent explained that she needs this money to enable her pay the university fee of their child. The Respondent annexed a copy of the order and the fee demand note from the University in the affidavit in support of the application. It was the Respondent’s case that unless the Petitioner was compelled by this court to pay the said sum, he would not willingly do so. The Petitioner filed an affidavit in response to the application. He denied the allegation by the Respondent to the effect that he owed any money to her. He stated that he had complied with all the orders in regard to maintenance that had been issued by the court. He annexed copies of his payslips, bank statements and M-pesa payment records to establish the fact that he had indeed been paying the Respondent the sum of Kshs.28,000/- per month as ordered by the court. He requested the court to make an order for accounts to be taken with a view to establish the veracity of allegations made by the Respondent against him in the application. As regard the payment of the university fees of their son, he reiterated that he had paid the entire fees. In that regard, there were no outstanding fees owing.
During the hearing of the application, the court heard oral rival submission made by the Respondent, who was acting in person and by Miss Mogire who was acting on behalf of the Petitioner. The parties essentially reiterated the contents of the pleadings filed in court in support of their respective opposing positions. The issue for determination by this court is whether the Respondent made a case for this court to commit the Petitioner to civil jail for failure to pay maintenance as ordered by the court. From the outset, it was clear to this court that there was dispute regarding whether or not the Petitioner had paid the maintenance that was ordered by the court. Whereas the Respondent insists that the Petitioner had failed to pay arrears to the sum of Kshs.486,000/-, the Petitioner on his part is emphatic that he has obeyed the maintenance order by paying the sum of Kshs.28,000/- per month. He annexed copies of statements which indicated that he had indeed paid the said sum of Kshs.28,000/- upto and including the month of June 2014. In this court’s assessment, the issue in dispute between the Petitioner and the Respondent appears to be that of taking of accounts. The order issued by G.B.M Kariuki J (as he then was) on 27th April 2012 was not specific as to the amount that was said to be outstanding maintenance as at that date. This court is of the view that the only way that a determination can be made on whether or not the Petitioner has been up todate with the payments of maintenance is for the parties to avail all documentations giving a sequential narrative of the payments made since the first order was issued by the court.
These documents shall be presented to the Deputy Registrar of this court who shall undertake a reconciliation to determine whether any amount is owed, and if so, how much. The parties are therefore ordered to appear the Deputy Registrar of this court on 6th October 2014 for the reconciliation to be done. Meanwhile, the parties shall be at liberty to file documents in support of their respective positions. Thereafter, the matter may be listed before a Judge in the division for further directions. There shall be no orders as to costs.
DATED AT NAIROBI THIS 22ND DAY OF SEPTEMBER 2014
L. KIMARU
JUDGE