[2025] KEHC 16754 (KLR)

LNO v CMO (Civil Appeal E015 of 2023) [2025] KEHC 16754 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 16754 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E015 of 2023

WA Okwany, J

February 6, 2025

Between

LNO

Appellant

and

CMO

Respondent

(Being an Appeal from the Judgment and Decree in the Chief Magistrate’s Court at Nyamira, Divorce Cause No. E012 of 2022 delivered by Hon. C.W. Waswa, Senior Resident Magistrate on 27th April 2023)

Judgment

1. The Appellant herein was the Respondent before the trial court where the Respondent sued her vide Plaint dated 9th September 2022 seeking the following orders: -1. Dissolution of the marriage2. Costs and Interests of the Suit; and3. Any other relief the court deemed fit and expedient to give.

2. The Respondent’s case was that he married the Appellant on or about September 2005 under common law marriage popularly known as “come we stay marriage”. They cohabited in Nyamira Township and were blessed with one issue (HOM). He claimed that the Appellant deserted their matrimonial home in 2013 after she got a teaching job and refused to return home to attend to him even while he was ailing. He added that the Appellant shockingly served him with court summons for child maintenance and sent him text messages to inform him that she did want anything to do with him. It was the Respondent’s case that the Appellant showed up at his rural home in April 2021 in the company of officers from the local administration and cut down trees before forcefully putting up a house next to his home. He stated that it is these actions by the Appellant that prompted him to file for divorce. He contended that the Appellant’s behaviour had caused him unnecessary suffering and pain.

3. The Appellant filed a Statement of Defence dated 21st October 2022 in which she denied the allegations contained in the Plaint and averred that even though she got a teaching job in Oyugis, she would go home over the weekends as she lived in the school staff quarters over the weekdays. She denied the claim that the Respondent was ill in 2013 as he alleged and added that the Respondent was a person who believed in witchcraft and would never go to the hospital. She stated that they jointly bought a piece of land to build their home in Nyamira Township but the Respondent sold the land without her knowledge or consent and further refused to heed her requests to build a house for her in his ancestral home. She claimed that the Respondent’s conduct led to her decision to solely erect a semi-permanent residential home at the Respondent’s ancestral home in Charachani Sub-location in Nyamira. She was opposed to the Respondent’s claim for the dissolution of the marriage.

4. The matter proceeded to a full trial and in a judgment delivered on 27th April 2023, the trial court ordered that the marriage be dissolved thereby triggering the filing of the instant appeal in which the Appellant enumerated the following grounds of appeal: -1. The Learned Trial Magistrate erred in both law and fact in allowing the Respondent’s prayer for divorce against the Appellant when the Respondent (sic) had not tendered sufficient evidence against the Respondent to prove allegations levelled against the Appellant to warrant the grant of divorce sought against the Respondent.2. The Learned Trial Magistrate erred in both law and fact when he decided the case against the weight of evidence led at the trial by the Appellant.3. The Learned Trial Magistrate erred in both law and in fact by pronouncing judgment against the Appellant when the Respondent had tendered insufficient evidence against the evidence of the Appellant and his two witnesses DW2 PO and DW3 BOO.4. The Learned Trial Magistrate failed to properly or at all, evaluate the entire evidence on record and thus reached a wrong decision/judgment.5. The Learned Trial Magistrate erred in both law and fact by pronouncing judgment in favour of the Respondent in total disregard of the evidence adduced by the Appellant and her two witnesses and the Appellant’s written submissions.6. The Learned Trial Magistrate erred in both law and fact when he failed to take into account the evidence adduced by the Appellant and her witnesses and the written filed submissions and instead he embarked on a process of deciding the case on presumption and not on evidence adduced in court and on record.7. The Learned Trial Magistrate erred in both law and fact when he decided the case against the weight of evidence led at the trial.8. The Learned Trial Magistrate erred when he considered the Respondent’s Counsel’s written submissions which were not filed and served within 14 days from 27th March 2023 as directed by the court and this was to the detriment of the Appellant.

5. The appeal was canvassed through written submissions which I have considered.

6. The duty of the first appellate court was explained in the case of Uganda Breweries Ltd vs. Uganda Railways Corporation [2002] 2 EA 634 where the Supreme Court of Uganda held thus: -“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11:‘I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”

7. It was not disputed that the parties herein were married and that they had one issue from their said marriage. According to the parties’ evidence, their marriage was classified as “come we stay” relationship as it was not formalised through registration or customary law. The Appellant stated, in her evidence before the trial court, that the Respondent paid dowry to her father, even though her own witnesses, who were the Respondent’s brothers stated that no dowry was paid. The above scenario notwithstanding, this Court still recognizes that a marriage existed between the parties herein and that the relevant law governing the suit is Section 69 of the Marriage Act, Cap 150 which states as follows: -69. Grounds for divorce of Customary marriages(1)A Party to a marriage celebrated under Part V may petition the court for the dissolution of the marriage on the ground of—(a)adultery;(b)cruelty;(c)desertion;(d)exceptional depravity;(e)irretrievable breakdown of the marriage; or(f)any valid ground under the customary law of the petitioner.

8. It was the Respondent’s case that the Appellant deserted the marriage and caused him unnecessary suffering. He further stated, during his cross-examination, that he wanted peace in his life and informed the court that he had a comfortable family and had returned the cow that he had paid for the Appellant’s dowry.

9. On her part, the Appellant stated that she had never deserted her home. Her witness BOO (DW3) corroborated her testimony and stated that it was the Respondent who deserted his home and instead a rented a house at Jogoo Estate in Kisii Town where he was staying with another woman. DW2 also testified that it was the Respondent who abandoned his wife thus leading to the filing of the child maintenance suit in respect to their son.

10. My understanding of the above facts is that the marriage between the parties herein had irretrievably broken down. Unfortunately for the Appellant, her own testimony and those of her witnesses’ points to this fact. In particular, it emerged, from their evidence, that the Respondent sold off the land they bought together to build their matrimonial home without her knowledge and refused to build a house for her at his ancestral home. The evidence also showed that the Appellant ended up constructing a house for herself on the Respondent’s ancestral land.

11. Based on the foregoing, it is clear that it was unlikely that the Appellant deserted her matrimonial home and if indeed she wanted to abandon her home and her husband, she would not have taken initiative to construct the semi-permanent house on the Respondent’s ancestral land. To my mind, the Appellant’s conduct was far from that of a person who wanted nothing to do with her husband, as alleged by the Respondent. If anything it was clear that she was fighting to stay married to him.

12. The above observations notwithstanding, it is this Court’s position that marriage is a union of two willing partners and that where one of them is no longer interested in remaining in the said union, the Court cannot impose the marriage on them by declining to grant divorce orders.

13. Section 66(6) of the Marriage Act provides that a marriage is considered to have 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 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; orh.any other ground as the court may deem appropriate.

14. In Alexander Kamweru vs. Anne Wanjiru Kamweru [2000] eKLR, the Court of Appeal held that: -“As regards irretrievable breakdown of the marriage, it is apt to point out that this ground of divorce was introduced by section 66(2) (e) of the Marriage Act, 2014 and was not recognized in the repealed Matrimonial Causes Act. In most of the jurisdictions that have embraced it as a ground for divorce, irretrievable breakdown of the marriage is understood to mean the situation where one or both spouses are no longer able or willing to live together and as a result the husband and wife relationship is irreversibly destroyed with no hope of resumption of spousal duties.”

15. From the totality of this case, it is clear that the Respondent has moved on with a new family and has no intention of remaining married to the Appellant. I find that the trial court correctly analysed the evidence before it and applied the law in arriving at its decision to dissolve the marriage on the basis that the same had irretrievably broken down. I note that no material was presented before the court to show that there was any possibility of the parties reconciling or getting back together as husband and wife.

16. I therefore find no justification in overturning the trial court’s verdict as doing so will be akin to forcing two parties into an already toxic relationship.

17. In the final analysis, I find that the Appeal lacks merit and I therefore dismiss it with no orders as to costs.

18. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 6THDAY OF FEBRUARY 2025. W. A. OKWANYJUDGE