[2010] KEHC 3654 (KLR)
The court found that the evidence of the respondent's income was not fully authenticated, particularly the rental income schedule, but accepted that the respondent receives at least Kshs. 50,000 per month as rental income. Applying Section 25(1) of the Matrimonial Causes Act, the court held that alimony pendente...
Source-derived case information.
- Citation
- [2010] KEHC 3654 (KLR)
- Parties
- Applicant: L.G.N.G; Respondent: J.G.K
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 2 of 2008
- Procedural Posture
- Divorce Cause / Interlocutory Application for Alimony Pendente Lite
- Outcome
- Notice of Motion dated 14/3/2008 allowed. Alimony pendente lite granted.
- Judges
- J Karanja
- Legal Topics
- Alimony Pendente Lite, Maintenance Orders, Matrimonial Causes, Spousal Support
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L.G.N.G
Applicant
J.G.K
Respondent
Procedural Posture
Divorce Cause / Interlocutory Application for Alimony Pendente Lite
Legal Issues
- 1 Whether the petitioner is entitled to alimony pendente lite pending the hearing and determination of the divorce cause.
- 2 What is the appropriate amount of alimony to be awarded under the Matrimonial Causes Act.
Ratio Decidendi
The court found that the evidence of the respondent's income was not fully authenticated, particularly the rental income schedule, but accepted that the respondent receives at least Kshs. 50,000 per month as rental income. Applying Section 25(1) of the Matrimonial Causes Act, the court held that alimony pendente lite cannot exceed one fifth of the average income, which amounts to Kshs. 10,000 monthly. The court granted this sum as sufficient to cater for the petitioner's expenses, pending the hearing and determination of the divorce cause or until further orders.
Court Disposition
Notice of Motion dated 14/3/2008 allowed. Alimony pendente lite granted.
Orders
- The respondent shall pay to the petitioner Kshs. 10,000 monthly as alimony pending the hearing and determination of the divorce cause or until the order is vacated or varied by the court.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Divorce Cause 2 of 2008
L.G.N.G………………………………………………………PETITIONER
VERSUS
J.G.K……………………..…………………………………………RESPONDENT
R U L I N G
The petitioner herein, L.G.N.G petitioned for divorce on 29/2/2008. Two weeks later, she filed a Notice of Motion dated 14/3/2008 asking for orders that the Respondent be ordered to provide her with Alimony and or maintenance pending the hearing of the divorce cause.
In her affidavit of means, she claims that the Respondent earns a monthly salary of Kshs.103,140/-. Yet she has asked for 102,000/= in paragraph 6 of her affidavit.
In her supplementary affidavit, she has annexed a schedule of rent showing that the respondent receives 50,000/- monthly as rental income. In my view however, the said copy of rent card has not been signed by the Respondent and it cannot therefore authenticated. In his replying affidavit, the Respondent has denied earning the amount stated by the petitioner. He avers that he has indeed spent a lot of money settling debts incurred by the petitioner who he refers to as a chronic borrower. He also depones that he is over 90 years old and in poor health while the petitioner is still strong and capable of fending for herself.
I have considered the said application and the rival affidavits. If it was purely upto me as a reasonable or prudent person, I would say that this is a couple who should not even be in court seeking divorce. A 92 year old man like the Respondent herein should be enjoying his twilight years without worries of court cases and alimony suits. It is a pity that the petitioner has had to file this matter. Now that the matter is in court however, the court must give a decision which decision must be guided by the law and the circumstances of the case.
Before the court can determine the amount of alimony to be paid to the petitioner, it is necessary for the court to determine the average net income of the husband for the 3 years preceeding the date of the order. As stated earlier on, the annexure showing the rental income could not be authenticated. There were other figures written at the back of the said annexure whose source was not disclosed. Even if I find that the evidence on the rental income can be relied on, hat could mean an amount of 50,000/= per month and the average gross income under Section 25 (1) of the matrimonial causes Act, alimony pendente shall not exceed one fifth of such average income. This therefore means that the alimony payeable to the petitioner cannot exceed 10,000/= monthly. I will therefore grant her that amount as the dictates of the relevant law demand but also because in my view the said sum is sufficient to cater for the petitioner expenses.
I therefore allow the notice of motion dated 14/3/2008 and grant prayer 1 of the same. The Respondent shall pay to the petitioner 10,000/= monthly as alimony while pending the hearing and determination of this divorce cause or until the said order is vacated or otherwise varied by the court.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 3rd day of March 2010.
In presence of:- Ms Kimani for Mr. Kathungu for Petitioner.
Petitioner in court.