[2023] KEHC 19440 (KLR)

JMM v BMW (Family Appeal E003 of 2022) [2023] KEHC 19440 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19440 (KLR)

Republic of Kenya

In the High Court at Makueni

Family Appeal E003 of 2022

GMA Dulu & GMA Dulu, JJ

June 29, 2023

Between

JMM

Appellant

and

BMW

Respondent

(From the decision in Makindu SPM Divorce Cause No. 5 of 2007 delivered on 14th September 2008 by Hon. B. Ochieng(PM))

Judgment

1. In a judgment delivered in Makindu Magistrate’s Court on 14th September, 2008, the Magistrate dismissed the divorce case filed by the appellant JMM and concluded as follows:-‘In the final analysis it is my finding that the petitioner has failed to establish any of the two grounds for seeking dissolution of their marriage on the balance of probabilities and consequently, I do hereby dismiss his petition herein with no orders as to costs.’

2. It is worth putting it on record here that the two grounds for seeking dissolution of marriage before the Magistrate’s court were ground (4) and (5) of the Petition that is cruelty and desertion of the matrimonial home by the respondent.

3. Dissatisfied with the decision of the trial court in dismissing the case herein, the appellant, who was the petitioner in the trial court, has come to this court on appeal on the following grounds:-1. That the learned Magistrate erred both in law and fact by dismissing the petitioner’s petition for lack of evidence.2. The learned Magistrate erred both in law and fact by dismissing the petitioner’s petition against the weight of evidence tendered by the respondent and thus occasioned a miscarriage of justice.3. The learned Magistrate erred both in law and fact by relying on the evidence tendered by the respondent’s witnesses.4. The learned Magistrate erred both in law and fact by failing to evaluate the weight of the evidence of the petitioner.5. The learned Magistrate erred both in law and fact by not establishing the fact that the respondent’s witnesses were only her sympathizers and kins.6. The learned Magistrate erred both in law and fact by failing to note that the respondent’s witnesses were couched to testify against the petitioner.7. The learned Magistrate erred both in law and fact by failing to find out the cruelty meted to the petitioner by the respondent were mostly done in their matrimonial house but not in public.8. The learned Magistrate erred both in law and fact by failing to find out that the respondent was unreasonably denying the petitioner his conjugal rights wherein there cannot be an eye witness.9. The Magistrate erred both in law and fact by failing to note that the petitioner’s would be witnesses then were unwilling to testify before court in matters relating to marital affairs.10. That the Magistrate erred both in law and fact by not taking into account the incompatibility of both the petitioner and the respondent due to the respondent’s cruelty.11. The learned Magistrate erred both in law and fact by failing to note that the marriage between the respondent and the petitioner significantly lost taste and died many years ago and all remains is a shell of the same nothing can rekindle the once was flame of love (sic).12. The learned Magistrate erred both in law and fact by failing to note that the respondent has lost trust with the petitioner due to alleged/purported unfaithfulness for extra marital affairs on the part of the petitioner.13. The learned Magistrate erred both in law and fact by failing to note that the respondent never admitted nor apologized for her mistakes in the presence of church minister AIC Kisayani.14. The learned Magistrate erred both in law and fact by failing to find out if it was the respondent who passively and actively deserted the petitioner while he was at Mombasa.

4. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the respondent.

5. As a first appellate court, I am not bound to go by the findings of the trial court, but I am expected to put the evidence on record through a fresh evaluation and come to my own independent conclusions. In that regard, a first appeal is in the form of a retrial in so far as re-evaluating the evidence on record is concerned – see Selle v Associated Motor Boat Company Ltd [1968] EA 123.

6. I note that at the trial, the appellant who was the petitioner tendered evidence alone as PW1. He did not call any additional witness. The respondent on her part testified as DW1 and called DW2 Richard Charles Wambua, DW3 Rev. Stevene Musia Kiswii and DW4 Richard Charles Wambua from Kibwezi as witnesses.

7. The burden was on the appellant to prove his two grounds for seeking divorce. This is anchored in statute under Section 107 of the Evidence Act (Cap.80) which provides as follows:-‘107 Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’

8. Thus the appellant had to prove the two allegations he made against the respondent in the petition for dissolution of marriage, which were cruelty and desertion through facts. As the proceedings are in the nature of civil proceedings the standard of proof was on the balance of probabilities.

9. The first ground which the appellant relied upon was cruelty. From his evidence on record he only testified to the respondent being abusive. If proved, such can be adequate ground, as under Section 65(b) of the Marriage Act No. 4 of 2014, such cruelty can either be physical or mental, inflicted by the other party on the petitioner or the children. The section provides as follows:-“65. Grounds for dissolution of a Christian marriage(a)....(b)Cruelty, whether mental or physical inflicted by the other party as the petitioner or on the children, if any, of the marriage.”

10. Though the appellant’s evidence did not give details of the circumstances under which he was called bad names, he stated that the respondent suspected him to be having an extra-marital affair and thus repeatedly called him bad names. The definition of cruelty was alluded to by Sir Charles Newbold when he stated in the case of Colarossi v Colagrosi [1965] EA 129as follows:-‘No comprehensive definition of cruelty has ever been accepted as satisfactory which depends on the habits and circumstances of the matrimonial life of husband and wife, their characters, the normal mode of conduct of one to the other and the knowledge which each has of the true intention and feelings of the other. An essential element for every petition based on cruelty is however that the party seeking relief must prove actual or probable injury to life, lives or health.’

11. In addition to the above definition, in the persuasive case of R.N.O v B.K.J [2021] eKLR the High Court stated as follows:-‘As such the basis for cruelty as agreed for divorce is a case specific within the scope of the Marriage Act. It is sufficient that one spouse or both proves to the court that the cruelty being explained is for such type that it’s impossible for them to live together. As such the delivering false allegations by one spouse about the other having alleged that relations with different men or women for that matter outside other recognized marriage can amount to emotional and mental cruelty.’

12. In the present case, it is established through evidence that the respondent had formed the habit of calling the appellant bad names, on allegations of unsubstantiated extra-marital affairs. Such conduct certainly causes mental anguish, especially when repeated and in my view, it amounts to cruelty. Since there is evidence of repeated bad names calling of the appellant by the respondent on alleged extramarital affairs of the appellant, in my view this amounted to cruelty, which was thus proved by the appellant.

13. Though the appellant did not call any additional witness, the respondent did not deny the evidence of the appellant on bad name calling. Her witnesses also did not controvert this allegation, but merely insisted that there is need for discussions and reconciliation between the appellant and the respondent.

14. In my view, this cruelty led to the consequential living apart of the two spouses herein for a long period of time and shows that the marriage between them has broken down irreconcilably, and cannot be sustained any more.

15. The second ground for seeking dissolution of the marriage was desertion. Section 65 (e) of the Marriage Act recognizes desertion as a ground for dissolution of a marriage in the following terms:-’65 (e) Desertion by either party for at least three (3) years immediately preceding the date of prosecution of the petition.’

16. The meaning of what constitutes desertion in matrimonial matters has been considered severally by Kenyan courts. I will only cite the case of M.N v J.K.N [2019] eKLR wherein the High Court observed that leaving the matrimonial home on its own might not necessarily amount to desertion. The court then stated as follows:-‘It is a general presumption in law under Section 119 of the Evidence Act that this court takes cognizance that by the petitioner leaving the matrimonial home Is not necessarily a desertion. The fact is that and evidence proved that the home had been broken down by the respondent driving her to another place altogether. It seems to me the intention of the respondent was to bring the cohabitation with the petitioner to an end.’

17. In our present case, the uncontroverted evidence is that the appellant chased away the respondent from the matrimonial home. He did not thereafter follow her up or go to her parents for any reconciliation. Thus like the trial Magistrate I find that the appellant did not prove his allegation that the respondent deserted the matrimonial home, as she was actually chased away by the appellant himself.

18. I note that in this family or matrimonial matter, the respondent and her relatives are still keen on reconciliation. The appellant on the other hand is adamant on ending the marriage and is not bent on reconciliation. In my view, a court of law is not in a position to force parties to live together especially when they have lived separately for about 20 years now. In my view, if the marriage has broken down irretrievably, the best way and the law allows, though morality and religion might hold different views, is that each party accept the situation and feels free to move on with life, as marriage is not a forced bondage.

19. The respondent has also raised in submissions the issue of maintenance of the child of the marriage. I note that in the petition for divorce the appellant sought that custody of the child be given to the respondent. This has not been opposed. I will give custody of the child to the respondent, but I order that the appellant will bear 50% of all costs of livelihood, medical and education matters of the child of the marriage.

20. Consequently, I order as follows;-i.I allow the appeal and dissolve the marriage herein on the grounds of cruelty.ii.A decree nisi for divorce will issue to be confirmed at Makueni Court after three (3) months from today. In this regard the matter will be mentioned at Makueni High Court on 4th October 2023. iii.The custody of the child of the marriage is hereby given to the respondent.iv.The appellant will bear 50% of all costs of livelihood, medical and education of the child of the marriage, until the child attains 25 years of age.v.Parties will each bear their respective costs of the appeal.

DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-The appellantMr. Otolo court assistant