[2023] KEHC 24922 (KLR)

LCS v SKS (Divorce Cause 4 of 2016) [2023] KEHC 24922 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24922 (KLR)

Republic of Kenya

In the High Court at Eldoret

Divorce Cause 4 of 2016

RN Nyakundi, J

November 7, 2023

Between

LCS

Petitioner

and

SKS

Respondent

Judgment

1. The Petitioner approached this court vide a petition dated 11th May 2019 and the amended petition dated 21st November 2020 seeking the following orders;1. There be a dissolution of the said marriage2. That the Respondent be condemned to pay the costs of these proceedings for occasioning the collapse of the marriage.3. The Respondent be ordered to pay alimony and maintenance to the Petitioner on dissolution of their marriage.4. That there be an order for the division of the matrimonial property owned by the parties to the marriage.

2. The background to the petition is that the Petitioner was lawfully married to the Respondent on or about 9th August 1975 under the African Marriage and Divorce Act at [Particulars Withheld] Catholic Mission in Nandi County. They then lived with the Respondent at their matrimonial home in Uasin Gishu County. Out of their union they were blessed with 7 issues namely;a)KKS - 1975b)SKK - 1977c)JC - 1979d)IC - 1982e)TKS - 1992f)VCS 1992g)DKK – 1997

3. The union then experienced some challenges culminating in the present petition. The Petitioner then instituted this petition for dissolution of the union on the grounds of adultery, cruelty and desertion.Petitioner’s case

4. The Petitioner’s case is that the Petitioner and the Respondent solemnized their union in 1975 before the coming into force of the Marriage Act. Section 98 (1) of the Marriage Act provides that;“A subsisting marriage under written or customary law hitherto in force constituted a valid married immediately before the coming to force of this act is valid for the purposes of this act. ”

5. Further, that it is not in dispute that a marriage subsisted between the Petitioner (LCS) and the Respondent (SKS) which has now irretrievably broken down. All efforts by the parties and the court to reconcile the Petitioner and the Respondent have been futile. She laid out the grounds of dissolution as set out in section66 of the Marriage Act.

6. It is the Petitioner’s case that during the hearing she stated that the Respondent introduced other women into their marriage in the year 2009 and 2012 respectively which allegations were admitted to the Petitioner by the Respondent. On the other hand, the Respondent acknowledged during cross -examination that he is currently not living with the Petitioner in their matrimonial home and to him the “ladies/women” named by the Petitioner are his caregivers. Counsel cited the case of DM v JM [2008] eKLR in support of the submissions.

7. The Petitioner feels that the years of the marriage was characterized by threats, cruelty and anguish. During the hearing, she indicated that the Respondent is a man of ungovernable temper, arrogant and contempt who has constantly abused and beaten her on several occasions. She further testified that for the love and affections he had towards the Respondent, she has been persevering until one occasion on 27/5/2008 when the beatings and assault became too much that she could not stand it and was forced to report the matter to the police station at Moi’s Bridge and was issued with a P3 form produced as PExh 1. It was the Petitioner’s testimony that the Respondent made threats to kill the Petitioner. He did so recently when he came to the Petitioner’s matrimonial home (which the Respondent is not residing in) and pulled out the gun and attempted to shoot the Petitioner. The possession of the gun was admitted by the Respondent during the hearing whereby it was stablished that the Respondent was retired police officer during the late president Moi’s regime. The Respondent’s actions have really put the Petitioner under a lot of mental and physiological torture to an extent that she has developed a medical condition (High Blood Pressure). The Petitioner has been subjected to cruelty and negligence by the Respondent leading her to file a children’s case at Eldoret Law Court in the year 2011.

8. Learned counsel relied on the holding of Justice Kariuki in W.M. M Vs B.M.L[2012] eKLR in Gollins v Gollins [1963] 2 all ER 966 HL 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 injuries 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”

9. 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 a spouse relief.

10. Counsel urged that the Petitioner wants is the relief of divorce from the Respondent as she has undergone a lot of pain which has led to mental anguish and psychological torture and subsequently a cardiac condition all because of the actions of cruelty by the Respondent therein.

11. The Petitioner submitted on the grounds of desertion, stating that the Respondent moved out of the matrimonial home since 2006 and is now living with other women introduced into their marriage which is against the statutory marriage entered into by the Petitioner and the Respondent; and in particular, adultery is not allowed. Further, that it is evident that during the hearing the Respondent herein admitted that he is not currently living with the Petitioner in the matrimonial home but living with his mistresses. The fact is not just proof of adultery but also of desertion. As a result of the said desertion and admission of such desertion by the Respondent, the Respondent has deprived the Petitioner of consortium and has refused to honour his marital responsibilities.

12. Learned counsel urged that the Petitioner seeks maintenance in respect of food, shelter, clothing and for costs of subsistence and medical expenses. Counsel cited the case of M.S. V v J,V & Another [2015] eKLR in support of the submissions on alimony. Further, that 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. Further, neither alimony nor maintenance should be paid as a matter of course it should not be used as a field where spouses cash 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.

13. The Petitioner submitted that the Respondent herein is a man of means which was clearly evident that the Petitioner’s business “the petrol station” she used to run was shut down by the Respondent and thus not capable of sustaining herself. The Respondent sold the said petrol station and the proceeds thereof were never accounted for. It is also notable that the Petitioner lives with some of the issues born out of the marriage hence she shoulders the responsibilities alone.

14. The Petitioner urged that since the parties separated, it has been very tough for the Petitioner financially to an extent where some of the issues’ education had to be cut short. The Petitioner herself has developed a medical condition, which same position was confirmed by the Respondent during cross - examination that he was aware that the Petitioner has high blood pressure) out of a lot of mental and psychological torture she has undergone.

15. The Petitioner’s case is that their differences are irreconcilable, beyond redemption and the marriage has irretrievably broken down. Therefore, the Petitioner prayers for an order of dissolution of the marriage. Further, that to resuscitate the marriage herein would be tantamount to flogging a dead horse as there is love lost between parties. Counsel urged the court to allow the petition.

Respondent’s case 16. The Respondent filed submissions in opposition of the petition. Learned counsel for the Respondent submitted that the Petitioner has not proved the allegations of adultery against the Respondent. The Petitioner testified that in the year 2006, she was told that the Respondent was committing adultery and could not tell the court who was committing adultery with the Respondent. She further stated that she only heard about it. The standard of proof required in allegation of adultery is very high; the evidence must go beyond establishing mere suspicion and opportunity to commit adultery. The evidence in this case is purely circumstantial and mere suspicion and is not sufficient to justify finding of adultery. In the case of DM (2008)KLR.

17. The Respondent submitted that the evidence provided by the Petitioner is purely hearsay. She was told that the Respondent was committing adultery and such the evidence does not afford reasonable grounds for believing that the Respondent had committed adultery, the Petitioner did not call any witness to prove allegation of adultery. The persons who told her that the Respondent is committing adultery never testified. Her allegation of infidelity against the Respondent is therefore not substantiated as the information given by the informants who never testified is mere hearsay, evidence which is inadmissible.

18. Learned counsel urged that what constitutes cruelty as ground for divorce is broad. That it includes both physical and emotional cruelty. The Petitioner ought to proof that the Respondent subjected her to cruelty during marriage. The Petitioner has failed to prove the particulars of cruelty as she alleges. There is no evidence that was produced before this court to proof that the Respondent was cruel to the Petitioner to the extent that it warrants a divorce. The Petitioner has disclosed to this Honourable court that she returned to her matrimonial home where she is now living with the Respondent. If indeed the Respondent was cruel to the Petitioner, she would have not gone back to her matrimonial home to live with the Respondent.

19. Counsel cited the case of DM v M [2008]1 KLR 5 where Justice Chesoni S as he then was stated the principles to establish cruelty to the complainant. He urged that the Respondent has always treated the Petitioner with love, affection, tender care and respect. The Respondent has been committed to the marriage and has made emotional and financial investment in the marriage and the family generally despite being extremely sick and confined in a wheelchair. Further, that it is in fact the Petitioner who became hostile and cruel and refused to take care of the Respondent when he was extremely sick and bed ridden, that is when Petitioner left matrimonial home. The Respondent tried to facilitate reconciliation with the Petitioner but the Petitioner refused to cooperate and attend the meeting even after the family members intervened.

20. Counsel urged that the Respondent never deserted his matrimonial home in the year 2006 and it is the Petitioner who actually deserted their matrimonial home when the Respondent was extremely sick and bedridden. The Petitioner failed to honour her marital responsibilities and left the Respondent in sick bed. Further, that he Petitioner has not proved that the Respondent deserted the matrimonial home. Counsel cited the case of GKK v JWG [2020] eKLR in support of this submission.

21. The Respondent’s case is that what emerges from the evidence of the appellant is that there were discussions every time the Respondent left the matrimonial home, which would lead to the Respondent returning to the matrimonial home. This is a clear indication that the marriage has not irretrievably broken down. Further, that the allegation of desertion must be proved with concrete evidence and the Petitioner has failed to prove the grounds of desertion. The Petitioner is well provided for and is currently staying at the matrimonial home in Moi’s bridge and thus not entitled to alimony. The court is mandated to scrutinize the direct and indirect contribution of each party to the marriage. From the evidence on record, it shows that the marriage between the parties herein is still alive and subsisting. The state has an obligation to protect the sanctity of marriages.

22. Article 45 (1) of the constitution of Kenya 2010 provides that:-“The family is the natural and fundamental unit of the society and the necessary basis of social order, and shall enjoy the recognition and the protection of the state”

23. This entails that the state has obligation to protect the family. Thus, if families are not protected or if courts gives a blind eye on the mischief divorce, the spirit of article 45 (1) of the constitution will be defeated.

24. The Respondent urged the court to dismiss the petition with costs.

Analysis & Determination 25. Upon consideration of the Petition, responses thereto, and the submissions, the following issues arise for determination;1. Whether the marriage between the parties should be dissolved2. Whether the Petitioner is entitled to alimony3. Whether there should be an order for division of matrimonial property

Whether the marriage between the parties should be dissolved 26. The Marriage Act, 2014 at section 66(2) provides for the grounds upon which a civil marriage may be dissolved. These include(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(e)the irretrievable breakdown of the marriage”

Whether the Petitioner proved adultery 27. It is trite law that he who alleges must prove. Section 107 of the Evidence Act is clear that whoever alleges a fact, must prove the fact. The Petitioner claimed that the Respondent introduced other women to their marriage between 2009 and 2012. Further, that the Respondent has frequently committed adultery with various persons one of whom is known as Agnetta Kipchumba who he is currently cohabiting with and Everlyne Muhavi who he has been cohabiting with since 2012 as per the particulars of the amended petition. From these particulars, the court is not able to determine who of the two he is alleged to be cohabiting with at the moment. That notwithstanding, there were no witness statements or evidence tendered in support of these allegations of adultery. The Petitioner’s testimony was the only evidence on these allegations and was not corroborated in any way shape or form. Therefore, the Petitioner failed to prove this ground.

Whether the Petitioner proved cruelty 28. The Petitioner claimed that there was cruelty from the Respondent in the marriage. The particulars of the cruelty were that he falsely accused her of hiring people to attack him with a firearm, that on several occasions he would subject her to beatings and assault her, that he falsely accused her of conspiring to shoot one of his mistresses’ sons dead and that he had been cruel to their children by refusing to pay maintenance. She tendered a P3 form in support of these allegation. The form dated 30th May 2008 stated that she reported the assault by her husband the particulars of which were that he hit her in the chest and head with an elbow. She also produced the warrant of arrest in Eldoret Children’s court case no. 128 of 2011 as evidence of his cruelty. I note that there was no subsequent arrest or criminal case arising from the report of the assault and therefore, it is not clear whether the allegations that her husband was the cause of her injuries were proved to the required standard. Assault is a criminal offence and therefore, to lend credibility to the allegations, evidence of criminal proceedings on the same would suffice. I also note that the plaint in the children’s court case indicates that the Petitioner was seeking maintenance for the child in terms of school fees whereas the order of the court was for the payment of rent.

29. Equally, the Respondent claimed that it is the Petitioner who has been cruel to him and that he has suffered hardship, torture and mental anguish as a result of the neglect that has been meted out on him. He acknowledged the existence of the children’s case but denied having neglected his children and maintained that it is the Petitioner who deserted him when he was bedridden and confined to a wheelchair.Sir Charles Newbold in Colarossi v Colagrossi[1965] E.A 129 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.”

30. It is clear there have been hostilities between the parties which have consequently resulted in the present petition. However, the allegations of cruelty have not been corroborated by evidence in court, at least to the required standard. It is therefore my considered view that the alleged cruelty has not been proved by the Petitioner.

Whether the marriage has irretrievably broken down 31. Section 66(6) of the Marriage Actprovides;(6)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 wilfully 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 of the 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.

32. I have considered the submissions by both parties and it is evident that the parties herein are no longer in the position to foster a loving relationship between themselves. What emerges from the proceedings is that the Petitioner does not want to be in the union with the Respondent as she believes he is an adulterous man and that he has been cruel to her over the years. I am in agreement with the Petitioner that trying to resuscitate this union would be akin to flogging a dead horse.

33. In the premises, it is my view that the marriage has irretrievably broken down.

Whether the Petitioner is entitled to alimony 34. In W.M.M. v B.M.L. [2012] eKLR, G B M Kariuki, J (as he then was) held that:“In considering a claim for maintenance, regard must be heard to the provisions of Article 45(3) of the Constitution of Kenya which recognize 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.” The rights enshrined in this Article connote equality of parties in a marriage and are intended to ensure that neither spouse is superior to the other in relation to enjoyment of personal rights and freedoms. The equality in this Article does not create nor is it intended to create equal spousal ownership of property acquired during marriage regardless of which spouse has acquired and paid for it or regardless of how it has been acquired and paid for. Rather, and contrary to the assumption that it makes property acquired during marriage the property of both spouses in equal shares, 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, including the right to equal opportunities in political, economic, cultural and social spheres.”In the light of Article 45(3), the criterion in determining the rights and obligations of spouses in a marriage must treat the husband and the wife as equals and neither has a greater or lesser obligation than the other in relation to maintenance. In short, in cases where, as here, spouses have no children, a wife does not enjoy advantage over a husband or the vice versa and 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.Under the Constitution, the Respondent has a duty to support and maintain herself no less than the Petitioner has to support himself and there is no greater obligation on the part of the Petitioner to support himself than there is on the part of the Respondent to support herself. 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 seems clear that an adjustment to sections 25 and 26 of the Matrimonial Causes Act (and to a host of other provisions) to align the same with the Constitution is called for…The quantum of maintenance must make sense. It must be such as the party paying can afford i.e. within the ability of the spouse paying it. It must not enrich the spouse to whom it is paid nor oppress the spouse paying it. Where the spouse seeking maintenance is capable of engaging in gainful employment but refuses to work, such conduct may be oppressive to the other spouse and the court is entitled to have regard to it when considering the quantum of maintenance. Equality of spouses under Article 45(3) of the Constitution connotes equal treatment under the law.”

35. In W.N. v P.B. [2013]eKLR, the High Court observed as follows:-The concept of alimony originated in England. A wife was deemed to be totally reliant on her husband and would not own property or earn money to support herself. As such upon divorce alimony would provide an economic means to enable the divorced wife to support herself and prevent her from being a public charge.”

36. Section 77(1) of the Marriage Actprovides;The court may order a person to pay maintenance to a spouse or a former spouse—(a)if the person has refused or neglected to provide for the spouse or former spouse as required by this Act;(b)if the person has deserted the other spouse or former spouse, for as long as the desertion continues;(c)during the course of any matrimonial proceedings;(d)when granting or after granting a decree of separation or divorce; or(e)if, after making a decree of presumption of death, the spouse or former is found to be alive.

37. The provisions leave it to the discretion of the court on the granting of maintenance. The issues that the union was blessed with are all adults with the youngest being 26 years of age and therefore, there are no children requiring the support of the parents. I have considered the submissions of the Petitioner on alimony and find no grounds to grant the prayer for alimony or maintenance.

Whether the orders for division of matrimonial property should issue 38. The division of matrimonial property is governed by the Matrimonial Property Act. In order for the courts to divide the Matrimonial property, the party seeking the division of the property is supposed to institute a matrimonial cause vide an application at the High Court of Kenya. A party seeking to have the matrimonial property divided must attach 'a decree absolute', evidencing that the marriage has been dissolved. It follows that this court cannot consider the orders for the division of matrimonial property at this juncture.

39. In the premises, the petition for dissolution of marriage succeeds to the extent that the marriage has broken down irretrievably. Accordingly, a decree nisi shall issue and to be made absolute after two months hereof. Each party shall bare their own costs.It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 7TH DAY OF NOVEMBER 2023In the presence of:M/s Kesei for TumM/s Nyabuto for Onyinkwa for the Respondent.....................................R. NYAKUNDIJUDGE