[2016] KEHC 2739 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

DIVORCE CASE NO. 10 OF 2016

(FORMERLY MOMBASA DIVORCE CAUSE NO. 45 OF 2015)

K A S. ……..… PETITIONER

VERSUS

M M K. …..... RESPONDENT

JUDGEMENT

This is a story of a love gone sour. The Petitioner, a fresh school leaver got acquainted with the Respondent and with the Petitioner's parents’ permission they got married. Their marriage lasted for about five years when the Petitioner filed a petition for divorce seeking a dissolution of marriage. In her petition she seeks a 50% stake in all the matrimonial property both immovable and movable, maintenance and upkeep and costs.

The Respondent on the other hand filed a cross-petition for a dissolution of the marriage, an order that the issue of matrimonial property be determined in a different suit, an order that the Respondent ought not to maintain the Petitioner due to her conduct and alternatively that she is sufficiently endowed to maintain herself. He further prays for a return of the bride price of Kshs.250,000. 00 inclusive of the wedding expenses of Kshs.1, 688,000. 00, a refund of the shop capital of Kshs.2. 37 Million, a refund of the purchase money of Kshs.630,000. 00 of the motor vehicle Toyota IST, KBM [Particulars Withheld] she gave away, an order for immediate return of the motor vehicle KBM [Particulars Withheld] which she gifted her father without permission or authority of the Respondent or alternatively a refund of its Ksh.520,000. 00 purchase price.

In addition, he seeks an order for surrender of his household goods which she gifted to her parents without his permission or authority of the Respondent. He also seeks an order for a refund of all the monies expended towards educating the Petitioner's siblings. Finally, an order that the house built by the Respondent for the Petitioner's parents be valued by a quantity surveyor on the cost incurred and a refund of the said costs. He prays for the costs of the petition and the cross-petition.

It is a common ground that the parties are residents of Malindi and have been domiciled in Kenya since birth. It is not in issue too that on 17. 04. 2010 they solemnized their marriage in Mombasa and obtained a marriage certificate and that no children were born out of the marriage.

The Petitioner seeks for a dissolution of the marriage on grounds of cruelty and adultery stating that the marriage has irretrievably broken down and efforts at reconciliation have been futile. The Petitioner states that she has in no way been an accessory to or connived or condoned the acts of cruelty and adultery.

The particulars of cruelty in brief are that. The Respondent concealed that he had children from previous relationships which she discovered in early 2011. He further concealed the reason behind his failure to attend his birthday party on 24. 07. 2010 which the Petitioner had organized as he had gone to attend the funeral of the mother to his daughter. She admits in her reply that his birthday was on 28. 07. 2010.

Prior to the marriage the Respondent who is currently a student at college promised to help her advance her studies by taking her to University but failed, refused and neglected to do so after the marriage insisting that he wanted her to be a house wife. On 21. 10. 14 the Respondent withdrew the vehicles he had purchased for her condemning her to use public means. She clarified in her reply that the Respondent traded in the Toyota IST for a Mercedes benz 'A' class and gave her the logbook and transfer forms for her safe custody for it was purchased in her favour. However, the Respondent has retained the said vehicle. Secondly the vehicle said to be gifted to her father was given by the Respondent on condition that he repaired it and other conditions that she was not privy to.

The petitioner states that the Respondent only set up the mini-market business but it collapsed as the parties used to take their household goods from it and use the cash to shoulder household expenses particularly during the period they were constructing.

The Respondent made threats to kill the Petitioner. He did so in early 2011 when he followed her to a beach while she was with her female friend and her children and pulled out a knife. She states she was not in a hotel at Mambrui as alleged and has never been to such a hotel. In 2012, the respondent again pulled out a knife on her in the presence of his father after a meeting with her in-laws. He had followed her in 2014 when she confronted the Respondent about a woman she found in their matrimonial home in Mombasa and threatened her life. In March, 2014 the Respondent bought a panga and a knife which he kept in their matrimonial bedroom making the Petitioner leave in September, 2014 fearing for her life. That prior to March 2014 the Respondent had never kept weapons in their bedroom.

On 20. 10. 14 while the Petitioner was doing her hair at a hair salon he threw her a punch/chair and drew out a knife pointing at her and shouting that he would kill her.

The Respondent has been keeping company with women of ill repute and dubious character. In mid 2014 the Petitioner found him at a social establishment in Mombasa having rounds of drinks with them and when he got home he punched her in the right eye after an altercation. On 20. 10. 2012 she found him doing so again and on confronting him was slapped. The Respondent had been rude to the Petitioner since the inception of their marriage and kept the company of other women especially while she was absenting and often came home in the wee hours of the morning.

The particulars of adultery are that the Respondent had been in an adulterous relationship with C.N and W.N both students at some Kenyan universities and has committed the acts in Nairobi and Malindi and other places unknown to the Petitioner. C.N consistently visits their matrimonial home on vacation and both students claim that the Respondent has gone to their homes for a traditional marriage. The Respondent also trawls the social media to prey on young single women and thereafter posts photographs of his exploits and adulterous behaviour.

The Petitioner also stated that she has never purchased a condom, nor cheated on the Respondent and fled her matrimonial home fearing for her life. She stated that the phone with explicit messages was registered in the name of the mini-market and used by an employee of the mini-market. She contests that the undisclosed adulterer referenced by the Respondent goes contrary to statutory requirement. The Petitioner states that she was married a virgin and carried herself with dignity.

The Petitioner states that the brideprice of Kshs. 10,000. 00 was not fully paid, the traditional wedding was on 15. 04. 2010 which the Respondent did not help to organise or shoulder its expenses, the wedding dress was worth

Ksh. 55,000. 00 and the rings Kshs.45,000. 00, there was no honeymoon and furthermore the Respondent's guest were more and he purchased clothes for them.

The Petitioner states that she never conceived nor procured an abortion. The fertility tests they undertook proved that she was normal but the Respondent never revealed that to her. The Respondent informed her that an accident he had in year 2010 and a case of poisoning he had may have affected his fertility.

The Petitioner states that the Respondent's son lived with his mother in Kitui County and only met him once and she met the daughter after the marriage and they bonded immediately. She further states that the Respondent is a very generous man who not only supported her family but his own and his friends and he never entered into any loan agreements or arrangements to support her family in his capacity as son and brother-in-law.

The Petitioner claims that the property disclosed by the Respondent is not the whole deal and he has concealed some of it. She agrees with the Respondent that there was no conniving or been an accessory to or condoned any acts of adultery or cruelty.

The Respondent filed a reply to the petition and cross-petition stating that the Petitioner long before their courtship knew of the existence of his children since she used to visit his house together with a mutual friend and also dated a friend of his son's uncle. He states that his birthday is not on 24th July and the mother of his daughter died long before their marriage. The vehicle he first gifted her was without authorization or permission sold or given out by the Petitioner to some unknown person and when she was confronted stated that she did not wish to keep it as it was expensive and would have preferred a restocking of her supermarket. He bought her two other vehicles for exclusive use one of which he used to drive with her permission but she gave out the other one to her father in 2011 without authority. On 20. 10. 2014 the Petitioner deserted the Respondent and stole the logbooks and transferred the same to her name.

The Respondent states that there was no promise to educate the Petitioner. After the marriage the Respondent set up a supermarket and mini-market for the Petitioner at the cost of over Kshs.5 Million and upon desertion she sold off all the stock, equipment, furnishings and assets without permission.

On her allegation of threat to her life, he states that he once did follow her upon being tipped that she was entertaining a man and after confirming that she was not with her female friend. She sped off in a vehicle before he could stop her. He never threatened to kill her at all nor in the presence of his father. He admits keeping weapons in the bedroom but for self-preservation and for security purposes affecting his family and this started before the celebration of the marriage. He denied that there was a woman at their matrimonial home or pulling out a gun at the Petitioner.

The Petitioner deserted the Respondent on 09. 02. 2014 and came back on 21. 03. 2014, did so again on 19. 04. 2014, returned on 11. 07. 2014 upon intervention and reconciliation by his relatives. Deserted again on 23. 08. 14 when they quarreled about her coming home in the wee hours of the morning and caught her red-handed in bed with an unknown man at their matrimonial home in Mombasa.

The Respondent states that he did not and does not keep the company of persons of ill- repute or dubious character nor was he rude to the Petitioner.

The Respondent claims that the Petitioner has been adulterous and carried herself as a single woman free to be dated and bedded by other men. He denied knowing either C.N or W.N and as they have not been joined to the petition the allegation ought to be expunged from record. He denied being a member of any social network hence denied the allegation of trawling and baiting young single women.

The Respondent admits that the marriage has irretrievably broken down but it is due to the Petitioner's acts of desertion, cruelty and adultery. Efforts at reconciliation have been thwarted by the Petitioner who is not legally entitled to any of the reliefs claimed.

At the cross-petition it is pleaded that the marriage was a farce and a facade used for economic and financial stability by the Petitioner. The Respondent reiterates that the Petitioner and her mother knew of his children before the marriage by dint of the visit the Respondent and his children made together at the Petitioner's mother's shop and by the fact that the Petitioner was a frequent visitor at his house. Further it is pleaded that a professional relationship was initiated between him and the mother for legal representation of the Petitioner. It was during that time the Petitioner’s mother came to know of his single status and more about his children and he of their family problems including the desertion by the Petitioner's father. The Respondent even advanced her a soft loan at her request.

On 12. 12. 2009 the Petitioner requested to meet the Respondent which they did over lunch when she proposed to be his wife stating that she loved him and that their family was riddled with problems. He informed her that he would think it over and requested her to bounce it off her parents since he had children from previous engagements and furthermore he was acting as her advocate.

That December of 2009 the Petitioner's mother granted her permission to date and possibly settle into marriage with the Respondent. Once again she poured her heart on their family struggles to the Respondent and he gave her some financial assistance. He however requested for time to consult with his friends and family about the proposed relationship. Later the Petitioner's family was evicted from their house due to rent arrears, the Respondent stepped in and gave out money which enabled them secure another house. The Petitioner then called to inform her father about their struggles and about the Respondent. The Respondent's family and that of the Petitioner's meet towards the end of January, 2010 and they agreed that the two would conduct a traditional wedding ceremony first on 16. 04. 10 followed by the formal one on 17. 04. 10.

The Petitioner's father moved with the Respondent to Malindi as he was jobless and was wanted by police over embezzlement of funds and failure to register students for exams. The Respondent got him a teaching job. The Respondent also enrolled the Petitioner in a college and at her request he allowed her elder brother to move in with him so as to ease their parents’ financial burden, enrolled him to college and driving school and even got him a tour guide job. At the Petitioner's request he financed the transfer of her younger sisters to a better school and footed their school fees and transport costs. He seeks for a refund of the same. The Respondent also allowed the Petitioner's siblings to move to his Mombasa residence under the care of his house help and a friend who resided their so as to ease their parents financial burden. He then assisted her parents to complete construction of their five bedroomed house which he seeks that the court values the costs and the Petitioner to be ordered to refund. He alleges that the Petitioner confided in him that a lady from church had prophesized to her and her mother that the Respondent was God sent to rescue their family.

In the ensuing months and even after marriage the Respondent found himself settling the Petitioner's mother's debts even 'rescuing' her from the police where she had been remanded for indebtedness to a third-party. He states that an aunt of the Petitioner and a former MP had separately forewarned the Respondent that the Petitioner was in it for the money from a conversation they had overheard. On inquiring from the Petitioner, she and her family got furious and demanded that he ceases any associations with them.

The Respondent pleads that he shouldered all the costs for the traditional and formal marriages which he quantified and stated that the Petitioner left with some of his records that bore the breakdown of the expenses. The Respondent in addition states that he advanced Ksh.2. 37 Million to the Petitioner by using it to set up for her a jewelry, an Mpesa shop and mini-market with a promise to be repaid which were all ran aground due to the Petitioner's absenteeism. She then closed shop and sold off everything without authority and failed to refund the capital which he now claims.

The Respondent claims for a refund of monies used to purchase the motor vehicle, a Toyota IST he gifted her after the wedding bought at

Kshs.630,000. 00 which she allegedly sold off without permission. A refund of Kshs.910,000. 00 for cost of his Mercedes Benzshe transferred to her name and of the Kshs.520,000. 00 for the Nissan Wingroad saloon which she gave without any authorization to her father. In the alternative he seeks that both theMercedes Benzand the Nissan Wingroad saloon be returned to him alongside their logbooks. He in addition claims for the sofaset, fridge and two gas cylinders which the Petitioner removed from his house and gave to her parents.

The Respondent states that the Petitioner since the inception of the marriage has been cruel. The particulars being: she hoodwinked him into entering a sham marriage for her financial gain believing it to be for eternal bliss and companionship. That despite all he had endeavored to do for her family she refused to have the Respondents children reside with them. She coerced him into settling their family's debts, building her parents a house, shopping for her family and paying school fees for her and her siblings. She converted his household goods and motor vehicle and gifted her parents without his authorization. She also converted one of the motor vehicle, sold it and refused to refund him its purchase price. In addition, she coerced him into settling his mother's medical expenses. Further, she ran all the businesses he set up for her aground and concealing the fact that she had acquired a managerial position at some company.

The Respondent also states that the Petitioner frequently deserted the home and businesses to unknown destination. The Petitioner did not behave like a married woman and had several boyfriends who left sexually explicit messages in her phone and was of loose morals and openly flirted with other men. It is pleaded that the Petitioner denied the Respondent conjugal rights necessary for enjoyment of marriage and was addicted to pornographic material and such like things denying the Respondent continuous emotional support, love, affection and companionship. Furthermore, she procured abortion twice since the celebration of their marriage.

In addition, she did not concern herself with wifely duties such as cooking for the Respondent, washing his clothes or supervising the house helps and instead but her energies towards her parents and siblings.

He alleges that the Petitioner was irresponsible, insolent, lazy, quarrelsome, vindictive and incapable of advice or counsel necessary for a happy marriage. The Petitioner deserted him and went to undisclosed locations. In addition, she refused to heed to counselling by parents on the complaints raised by the Respondent and to all conciliatory efforts. She also refused to visit his home village and only did so once or twice since the marriage. The Respondent further states that the Petitioner was a nag, nagging him constantly to include her name in the properties owned by the Respondent before the marriage. He also states that the Petitioner opened social network accounts endevouring to pass the same as his own though he was not into social networks. He further states that she was greedy for money, power and attention.

On desertion, the respondent alleged that the Petitioner deserted their rental home in Malindi from 03. 03. 2013 to 01. 04. 2013 after they quarreled about her pretense of attending to the business each morning yet she never used to make it for work but went to undisclosed locations returning only at the intervention of her father. On 08. 02. 2014 when the Petitioner and the Respondent's driver dropped the Respondent's daughter to school in Kitui County, the Petitioner refused to return together with the driver and went away to some undisclosed place until 01. 04. 2014 and returned when her parents intervened.

On 18. 04. 2014 the Respondent got home from work in Mombasa with his cousin at about 9. 30pm and found the Petitioner, her cousins and friend leaving dressed to attend some night event. She did not bother to offer an explanation why they were leaving. That it was her cousin who offered to explain. They returned at about 4. 30am drunk and causing commotion awakening the neighbours and the household. The Respondent sought an explanation from one of the cousins stating that as the Petitioner was a married woman she ought to have at least given some explanation. At that point the Petitioner came into the sitting room shouting all manner of insults and obscenities challenging the Respondent to a fight. The two were restrained. The Petitioner then left together with her cousins and returned at 10. 00pm alone that day. The Respondent was thus driven to calling her parents and they agreed to come to their Malindi home. They then offered to go with the Petitioner to their home for counselling to which the Respondent agreed however she instead deserted her parents’ home for some unknown destination only to return on 10. 072014. She later claimed to have gone to her aunt's place in Eldoret but it was without the authorisation and permission of the Respondent. She returned to him on 11. 07. 2014 upon the intervention of her cousins and close friends who brought her back home.

On 23. 08. 2014 the Petitioner was spotted driving off his vehicle at Mtwapa with an unknown man by the Respondent's friend. The Respondent called the Petitioner who informed him that she was at a rugby event in Mombasa. He decided to follow her to Mombasa. On getting there she was not present but informed him that she was at a cultural event within Mombasa. He found her in the company of scantily dressed women. He was furious that she had secretly gone to Mombasa without permission and left her at the event and headed to the house in Mombasa. She followed him to the house but came in at 4. 30 a.m. carrying used and unused condoms. On rummaging through her phone messages he found messages exchanged between her and some unknown man that indicated that they had some sexual contact. The Respondent forwarded the messages to the Petitioner's father and he confiscated the phone infuriating the Petitioner who left claiming that her father had called her for counselling. She left without permission and returned to the Malindi home on 30. 08. 2014.

On 18. 10. 2014 the Respondent canceled an appointment with his client at Garsen after the Petitioner refused to go with him stating that she had a hair appointment in Mombasa. He offered to take her to Mombasa when he came across the Petitioner's new number bearing messages from a person saved in her contacts as “future hubby”. The two had agreed to a rendezvous at Mombasa. On 19. 10. 2014 at about 10. a.m he dropped her off at the hair saloon and waited for her outside in the car. This prompted the Petitioner to request him twice to be on his way as she would alert him when she was through. Having a hunch that all was not right he pretended to drive off to a nearby shopping mall and returned five minutes later only to find that the Petitioner had informed the saloonist that she had gone to see someone shortly. He attempted to look for her and found her phone switched off. At about 4. 30pm that day he returned to their Mombasa home and found the Petitioner in bed with an unknown man. The two then overpowered him, locked him in the house and left. Later on the houseboy, who had his day off, opened the door for him. The Respondent informed her parents and they offered to intervene. However, on 20. 10. 2014 the Petitioner and her father made their way to the Malindi home and took all her belongings and documentation. She then closed and sold the shop. The Petitioner went off to some undisclosed destination.

On adultery he particularised this claim stating that on 10. 09. 2011 at about 8. 30pm he was leaving for Mombasa from Malindi but on developing mechanical problems returned home to find his wife naked save for the lesso that she had wrapped around herself with a neighbour , a man, in his bedroom . She claimed that there was a snake in the house which the neighbour who was dressed only in his night boxers had come to help look for. This lead to some serious confrontation and her parents summoned her to their house for counselling. On 27. 12. 2011 whilst on holiday with the Petitioner and his daughter, the Petitioner feigned a headache and they left her in the hotel room to get her anti-migraine medicine. When he and the daughter came back they burst the Petitioner posing naked with the male room manager. She claimed he was there to massage her to relieve the headache but did not explain the naked state of the room manager. As a result, the holiday was cut off prematurely and the daughter refused to reside at their place due to the infidelity of the Petitioner. In that year 2011 his nephew who was an employee at the Petitioner's mini-market saw the Petitioner picked and dropped by various men and when he confided in him, he confronted the Petitioner, his nephew was fired.

On 09. 08. 2013 he was informed by his friend that the Petitioner was entertaining an unknown man at a hotel in Mambrui on pursuing her, he found her leaving with him driving the Respondent's car. On 26. 10. 2013 the Petitioner left for Mombasa in the company of the house help and two other ladies she claimed to be her relatives. She then left them in the vehicle at a location in Mombasa, was then picked by some unknown man and they were thereafter seen kissing and fondling in another car. She returned to pick them at night. On 01. 05. 2014 the Petitioner was found by the Respondent's relatives parked at a tyre shop along Malindi -Mombasa road kissing some unknown man. When she recognised them she took off towards the general direction of Mombasa.

On 23. 08. 2014 when she came home at 4. 30 am bearing condoms and explicit messages in her phones the only conclusion one could draw was that she was being adulterous. On 19. 10. 2014 he found her in bed with another man at their Mombasa home and left in his company. On 29. 11. 2014 at about 11. 00p.m. the Respondent was tipped by his friend that the Petitioner was at a club in Malindi in the company of three people, 2 males and a female. On arrival he found her fondling with one of the men in public on confrontation she left in a huff with the said man to the humiliation of the Respondent. On 05. 12. 2014 she was spotted in a tuktuk fondling with another man. Furthermore, the three mobile phones he had purchased for her contained sexual explicit messages exchanged between the Petitioner and some other persons.

The respondent pleads that on account of the cruelty, adultery and desertion of the Petitioner their marriage has irretrievably broken down and seeks for its dissolution.

On the matrimonial property the Respondent pleaded that he had acquired it all before the marriage that is two houses completed in year 2003 at his ancestral land donated by his father, two houses in Mombasa purchased, two Swahili houses constructed at Malindi, a block of flats, an undeveloped plot at Malindi and one at Mtwapa. All the property was acquired without any contribution by the Petitioner and before their marriage. Of his movable property he claims that one of the mercedesbenz was bought on hire purchase, a loan still being serviced and to which the Petitioner never contributed. The other mercedes benz A Class was purchased solely by the Respondent but the transfer documents were stolen by the Petitioner and she transferred it to her name though the Respondent still uses it. The Nissan Saloon was illegally gifted by the Petitioner to her father to whose purchase the Petitioner never contributed. He further pleads that there are two 41 seater mini buses also bought on hire purchase, on a loan still being serviced jointly owned by the Respondent and another person to which the Petitioner never contributed.

The Respondent as a result states that there is no matrimonial property for division and that if there was any, a separate suit under the Matrimonial Property Act, 2013 ought to have been instituted. He prays as aforementioned.

At the hearing both parties opted to rely on their written statements and other documents filed earlier on and briefly stated that the marriage should be dissolved with each stating that their respective prayers be granted. However, the witness statements of the Respondent were struck off and do not form part of the evidence.

The statement by the Petitioner reherses part of her pleadings and adds that she was to further her studies in Malaysia but the Respondent promised to educate her in Nairobi instead. He made her quit her plans including her teaching job that she had taken up in 2009. She emphasised that she took care of the household chores and even provided for the family and footed various bills while they were undertaking a construction project. She would check daily on the progress of the construction. The Petitioner stated that the Respondent was involved romantically with various women. She was disappointed to discover that the Respondent had sired children with other women before the marriage and that he was in an extra-marital affair but they talked it over and he said he could not do so again. The Petitioner states that a houseboy barred her to enter their Mombasa house on instructions from Respondent. She also stated that the Respondent lied to her and put down particulars thereof. In the statement she inserted all the properties they allegedly acquired during marriage stating that at the point of marriage the Respondent only had a two bedroomed house at Kiembeni.

The Respondent's statement on the other hand was a reiteration of his pleadings. He explains his allegations of the petitioner’s cruelty and acts of adultery.

As this court is seized with the requisite jurisdiction to determine the issues at hand, we move to the issues for determination which are:Whether or not the grounds for divorce have been proved? Whether or not the Petitioner ought to get orders of maintenance? Whether or not the dowry, claimed by the Respondent should be refunded and the issue of costs.

The Grounds for divorce:

The applicable law is the Marriage Act No. 4 of 2014, “The Act”. Section 98 (1)provides that:

A subsisting marriage which under any written or customary law hitherto in force constituted a valid marriage immediately before the coming to force of this Act is valid for the purposes of this Act.

It is not in dispute that a marriage subsisted which now both parties claim has irretrievably broken down and they lay blame on its failure on each other. The parties do not however agree as to the exact date of the traditional ceremony but they are in harmony about the solemnized marriage of 17. 04. 2010 to which a marriage certificate was issued. The solemnization brings the marriage under civil marriages. This would imply that it ceases being potentially polygamous. Section 8(1) of the Act provides that:

A marriage may be converted from being a potentially polygamous marriage to a monogamous marriage if each spouse voluntarily declares the intent to make such a conversion.

The Black's Law Dictionary defines solemnizationas: The performance of a formal ceremony (such as a marriage ceremony) before witnesses, as distinguished from a clandestine ceremony. The marriage has been in place from 2010 and matrimonial proceedings were instituted on 21. 07. 2015. More than three years have lapsed from 2010. Section 66 (1)of the Act provides that:

A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.

The grounds for dissolution of a civil marriage are as per Section 66(2) of the Act which provides that:

A party to a marriage celebrated under Part IV may only petition the court for the separation of the parties or the dissolution of the marriage on the following grounds—

(a) adultery by the other spouse;

(b) cruelty by the other spouse;

(c) exceptional depravity by the other spouse;

(d) desertion by the other spouse for at least three years; or

(e) the irretrievable breakdown of the marriage.

It is trite law that he who pleads must prove. The common grounds for the divorce in the petition and cross-petition are adultery and cruelty. The cross-petition adds the ground of desertion by the Petitioner. However, it is clear that the desertion has been for a number of days running into weeks but does not fall under Section 66(2)(d) of the Act hence the claim under this ground does not warrant a dissolution of the marriage.

Cruelty is defined by the Black's Law Dictionary 8th ed as “the intentional and malicious infliction of mental and physical suffering on a living creature. “The dictionary points out that physical cruelty involves actual violence.”

It further defines “mental cruelty” the following terms: -

“As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical or mental health of the other spouse.”

Justice G. B. M. Kariuki SC (as he then was) in W.M. M v B.M.L[2012] eKLR was of the view that:

“Courts have avoided formulation of an exhaustive definition of cruelty. Acts of cruelty, like acts of negligence in the law of torts, are said to be infinitely variable.”

Justice G.B.M. Kriuki went on to state that “Conduct that may undoubtedly be cruel in one case may clearly not be cruel in another on account of differing circumstances.” The learned judge stood guided by the finding bySir Charles Newboldin Colarossiv Colagrossi[1965] E.A 129 where it was held that:

“no comprehensive definition of cruelty has ever been accepted as satisfactory – much depends on the habits and circumstances of the matrimonial life of the husband and wife, their characters, the normal mode of conduct one to the other and the knowledge which each has of the true intention and feelings of the other. An essential element of every petition based on cruelty is, however, that the party seeking relief must prove actual or probable injury to life, limb or health. For this reason, it is seldom indeed that a decree is granted upon a single act of cruelty though, should that act be serious enough and result in injury, then the court will grant the decree.”

Judge Kariuki referred to the House of Lords findings inGollins V Gollins [1963] 2 All E.R.966 H.L. [1964] AC 644 and Williams v Williams [1963] 2 All ER 944 HC [1964] AC 694 which established that the balance in claims of cruelty as a ground for dissolution of the marriage was in favour of giving relief to a complainant in a situation which has become intolerable. Such that if the spouse causes injure to the complainant’s health or is likely to do so, “it will amount to cruelty if it is grave and weighty and is such that the Petitioner cannot reasonably be expected to put up with it or to tolerate it.”

It was further held that “A reasonable apprehension that injury will result if the conduct persists will suffice for the simple reason that the court will not wait for a spouse to be actually injured before affording such spouse relief.”

The Petitioner states that the Respondent has been cruel to her by threatening her life, beating her, withdrawing the use of motor vehicles he had bought for her and keeping the company of women of ill-repute. The Respondent on the other hand claims that the Petitioner staged the marriage for purposes of financial gain, hoodwinked him into supporting her family financially , failed to act as a wife , flirted in public with other men, denied him conjugal rights, procured an abortion, deserted the matrimonial home and went to unknown destinations in the company of unknown men, ran the businesses he had set up for her aground and refused to return the capital and that she gifted his belongings to others without authorisation, They both denied each other's allegations on cruelty.

In my opinion both parties have proved mental cruelty as defined by the Black's Law Dictionary. They have further proved that they carry strong views against each other that can lead to mental anguish. The Petitioner claim that the Respondent threatened to kill her in more than one occasion. The view held by the Respondent that the Petitioner was out to milk him off his hard earned money and not out to capture the essence of marriage which to him is eternal bliss, affection and companionship. These views can lead to mental anguish. There is also the feeling held by each party that the other was cheating on her/him. It appears that the five years of the marriage were characterized by suspicion, threats, anger and anguish.

They also denied the particulars of the ground of adultery each levelled against the other. The Petitioner in the bundle of documents filed in evidence bears photographs purportedly of the Respondent with his mistresses and messages purportedly from his social media page. In my view the photographs do not prove an adulterous relationship with the persons. Furthermore, there is no proof that the messages exhibited were exchanged by the said actual persons and not computer generated or fabricated. I state this as the print out of the alleged phone messages do not display phone numbers of the writer nor the recipient. That even if it did there is no proof that the number belonged to the alleged co-adulterer. In addition, the print out of the messages said to be through social media do not indicate which social network was employed and proof that it was actually the Respondent's account. Furthermore, none of the printouts indicate the year of communication.

On the other hand, the Respondent's allegation that he found the Petitioner with explicit messages remains unproven. In addition, the claim that he found the Petitioner in bed with another man also remains unproven. In any case none of the parties admit the particulars. It remains a case of “he said/did -she said/did”.

Interestingly when the Petitioner found out that the Respondent had children from previous engagements she did not seek a separation or dissolution of the marriage but stayed put nor did she do so when there were allegedly acts of cruelty. The Respondent seems to have done the same when she allegedly kept the company of other men and behave less like a married woman. They both state that there were moments the Petitioner's parents attempted to stage reconciliatory processes. In my view they attempted to forgive each other.

Guided by the finding in W.M. M v B.M.L(supra)where it was held that: “Condonationor forgiveness of a matrimonial offence is a bar to a divorce petition. It arises where the complaining spouse is shown to have forgiven the offending spouse and to have restored such spouse to the same position as he or she occupied before the matrimonial offence. “ . I am of the view therefore that the parties would to that extent be barred. However, there is the straw that broke the camel's back. The Petitioner claims that weapons were kept in the bedroom as from March 2010. She claims to have left in September of that year. The Respondent maintains that the petitioner deserted him never to go back.

The Petitioner and Respondent both emphatically state that their marriage has irretrievably broken down each claiming that they did not connive nor were they accessories to their partner's acts.

Section 66 (2) (e) of the Act provides as a ground for dissolution: the irretrievable breakdown of the marriage. Section 66(6) of the Act provides that:

A marriage has irretrievably broken down if

(a) a spouse commits adultery;

(b) a spouse is cruel to the other spouse or to any child of the marriage;

(c) a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;

(d) the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;

(e) a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;

(f) a spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more;

(g) a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or

(h) any other ground as the court may deem appropriate.

In my considered view the relevant ground under Section 66(6) of the Act that can be applied to the irreconcilability of differences of the parties is its paragraphs (b) and (h). It is clear from the pleadings that none of the parties is interested in a conciliatory process. There is also a not so subtle dislike the parties have displayed for each other which appears to be deep seated. Furthermore, it is in the open that they do not trust the fidelity of each other and went on to discredit each other. In addition, it is obvious that whatever love and attraction they had for each other has been swept away by the winds of distrust demonstrated by the accusations they have levelled against each other. There is before the court a marriage by name and paper alone, a shell of its former self that has lost hope of being salvaged. It is nothing but a sham. In my view then, their differences are irreconcilable and the marriage has irretrievably broken down. Each party wants to head to the opposite direction with the intention of not ever meeting a gain. An order of dissolution of marriage ought to be granted.

Maintenance

The Petitioner seeks maintenance in respect of food, shelter, clothing, and for costs of subsistence, travel and medical expenses. The Respondent has opposed this stating that the Petitioner due to the alleged acts that lead to his cross-petition does not warrant the same.

I am once again guided by the finding in W.M.M.vs B.M.L.(supra) which was adopted by Judge I. Lenaola inM S V v S J V& another [2015] eKLRwhere it was stated that:

“In considering a claim for maintenance, regard must be had to the provisions of Article 45(3) of the Constitution of Kenya which recognizes that “parties to a marriage are entitled to equal rights at the time of the marriage, during marriage, and at the dissolution of the marriage …it relates to and recognizes personal rights of each spouse to enjoy equal rights to property and personal freedoms and to receive equal treatment without discrimination on the basis of gender and without being shackled by repugnant cultural practices or social prejudices. Article 45(3) is in harmony with Article 21(3) of the Constitution which enshrines equality of men and women and specifically states that “women and men have the right to equal treatment…

…the age-old tradition in which men were deemed to be the sole bread winners and to carry the burden of maintaining their spouses does not hold true anymore …

No spouse who is capable of earning should be allowed to shirk his or her responsibility to support himself or herself or turn the other spouse into a beast of burden but where a spouse deserves to be paid maintenance in the event of divorce or separation, the law must be enforced to ensure that a deserving spouse enjoys spousal support so as to maintain the standard of life he or she was used to before separation or divorce. The financial capacity of the spouses has to be examined before the Court makes a finding as to whether a spouse should pay maintenance and if so how much …”

It was further held that: -

“neither alimony nor maintenance should be paid as a matter of course. It should not be used as a field where spouses cash in on their partners. It should be established that the party claiming such alimony or maintenance is incapacitated to make his/her own earnings and therefore deserves the support of the other partner.”

The Petitioner made it clear that the business that she admits was set up for her was ran aground due to use of the goods and the cash inflows by the family. In other words, that if there is no family making demands from her businesses she is capable of running a business to sustain her. There are no issues born out of the marriage hence the Petitioner shall not shoulder any extra responsibility. It is not in question that she and her siblings were supported in their education and her parents housed adequately by the Respondent. The Petitioner was fresh from high school when she got married and was not supporting her siblings nor her parents. Furthermore, the Petitioner admits that the generosity of the Respondent boosted the quality of life of her family.

The petitioner came to court seeking to be divorced and subsequently set free from her engagement with the respondent. That is the main reason why she came to court. Since there are no children out of the marriage and in view of the parties’ view on each other, it would be unfair to grant the prayers for maintenance. The parties have been living separately since the petition was filed. No order of interim maintenance was made. It is fair if each party is set free and allowed to cater for herself/himself. Consequently, the prayer for maintenance is not granted.

There is another matter between the parties relating to matrimonial property. The prayers for refund for school fees, dowry and construction costs can only be dealt with in that matter.

In the end, I am satisfied that each party has proved that the marriage has irretrievably broken down. It is beyond redemption. Efforts to resuscitate the marriage would be tantamount to flogging a dead horse. There is no love lost between the parties. The marriage is hereby dissolved. The Marriage Act does not provide for a decree nisi. However, it is prudent that a decree nisi be issued followed by a decree absolute. We should not be 100% pessimistic. No one knows what tomorrow brings. A decree nisi shall issue and to be made absolute after two months hereof. Each party shall bare their own costs.

Dated and delivered in Malindi this 13th day of October, 2016.

S.J. CHITEMBWE

JUDGE