[2017] KEHC 4171 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA CIVIL APPEAL NO. 2 OF 2016

M M O…………………...........………………….……. APPELLANT

VS

F A H……………….………..………………………RESPONDENT

JUDGEMENT

This appeal arose from Wajir Kadhi's Court Civil Case No. 47/2016 wherein the appellant M M O was the defendant and the respondent F A H was the plaintiff.

In those proceedings, the respondent filed a complaint asking for dissolution of marriage and payment of dowry. Secondly, she asked for custody of the child and maintenance. Thirdly she asked for costs of the suit and any other relief the court may deem fit and just to grant.

The appellant filed a defence wherein he denied the allegations in the plaint and stated that the respondent should return to her matrimonial home without any condition.

In a judgment dated 6th April 2016 the Kadhi dissolved the marriage and ordered that the respondent should wait for the idda of three months to 7th July, 2016 for issue of divorce certificate. The court further ordered the defendant to pay dowry of a camel of 4 years within 90 days. The court also ordered transfer of a grass thatched house to respondent. Further the court granted custody of the child to the respondent and allowed the appellant reasonable access to the child. The court further also ordered the appellant to pay Ksh.3,000 monthly for the maintenance of the child.

Dissatisfied with the decision of the trial court, the appellant has come to this court on appeal on the following 8 grounds-

1. That the learned trial Kadhi erred in disregarding vital legal and factual issues while making his judgment.

2. That the learned trial Kadhi erred in failing to consider the appellant’s testimony which was not fully adduced in court

3. The learned Kadhi erred in failing to consider the applicable law to the dispute before the court.

4. Learned trial Kadhi erred in showing open bias and discrimination against the appellant.

5. The learned Kadhi erred in law and in fact in failing to consider relevant factors in arriving at the decision by admitting evidence of strangers.

6. The learned trial Kadhi erred in going outside his mandate in law by ordering that the marriage be dissolved, payment of dowry of a camel of 4 years, and that the appellant do transfer a thatched grass house in the area to the respondent, custody of child and a compulsory monthly payment of Ksh.3,000 as maintenance of the child.

7. The learned trial Kadhi erred by stating in his judgment that the respondent availed four witnesses who testified which was not true.

8. The learned Kadhi erred in that he denied the appellant fairness and opportunity to make his defence and bring witnesses to support his claim.

The appellant filed written submissions to his appeal. In addition to giving a summary of his complaints he asked for Ksh.38,080,000 for pursuing this matter for about 2 years. He stated that Article 50, 45 and 40 of the Constitution were violated by the trial court.

At the hearing of the appeal, the appellant relied on his written submissions.

In response, respondent stated that she was married off by her father to the appellant at Kuturo when she was young. That after two months, the appellant took her to Hajaja where he assaulted her every day and when she was 8 months pregnant, she run back to Kuturo just to find her father seriously sick having been diagnosed with cancer. She lived there until she gave birth and her father died and, for more than 6 months, the appellant did not pay them a visit. After one year, she called the elders and asked for divorce but when the appellant was asked he refused to divorce her and that is when she came to the Kadhi and brought 10 witnesses and the appellant did not bring any witness.

She stated that she did not have any interest of going back to the appellant. She said that she was married at 15 years and was now 18 years of age. She stated that his claim for money relating to furniture was a lie as she lived in small house.

In response ,the appellant said that the respondent was an adult and had an ID card when he married her. However right now she was involved with A R a member of Al-Shabaab who was her lover. He denied assaulting her. He also stated that the witnesses that the respondent brought before the Kadhi were not from the local area and that the Kadhi did not allow him to ask questions and threatened to imprison him.

This is a first appeal. As a first appellate court, I am required to reconsider the evidence on record afresh and come to my own independent conclusions and inferences. See the Case of SELLE VS ASSOCIATED BOAT COMPANY LTD (1968) EA 123.

I have perused the trial court records. I have perused the judgment. I have also considered the submission of the appellant and the respondent both oral and written.

I will start by acknowledging that this appeal was heard with the assistance of Principal Kadhi M.S Hassan as required under Section 65(1) ( c) of Civil Procedure Act and Rules. The Principal Kadhi sat in court during the hearing of the appeal as an assessor. After the conclusion of the hearing , the Principal Kadhi assessor submitted to me his opinion, and concluded in his opinion that the hearing was not conducted in fair way. He stated that part of the proceeding were conducted in the absence of the appellant on the 5th April 2016 without the knowledge of the appellant. The Kadhi emphasized that under the Civil Procedure Law and Islamic Writings such as the book on Sharia Islamic Law by Dr. Abdulahman Doi, a Kadhi being a judge is required to treat every litigant whether a king or his servants, master or servants, rich or poor, stranger or friend or adversely, equally when hearing their case and each is required to come to court and give their evidence for it to be known that there was fair play.

The Kadhi also gave the opinion that the issue of furniture raised by the appellant costing him Ksh.1,240,000 was not supported by evidence and that, in any, case the grass thatched house could not hold such furniture. The Kadhi also felt that the claim of the appellant for Ksh.39,080,000 was extremely exaggerated, unrealistic and had no basis in Islamic Law. The Kadhi stated that since the appellant was required to pay dowry of a 4 year old camel, any payment to him should take into account this amount.

The Kadhi concluded by stating that there should be retrial of the matter in the Kadhis court at Wajir and that the appellant be paid Ksh.30,000 subject to the Kadhi’s ruling on dowry.

Having perused and considered the proceedings myself, I am of the view that they were not conducted fairly and in accordance with the law that it Civil Procedure Act( Cap 21) and the Civil Procedure Rules.

The record shows that the respondent testified in court and called two witnesses. She did not give the details of her complaint and her requests for payment of dowry, and maintenance of the child. She merely said that the appellant was cruel and assaulted her and refused that she visit her ailing father. In cross examination, she stated that the appellant was a threat to her life.

The next witness of the respondent was described only as Ahmed who stated that he filed the brief of the story of M M O. He did not say anything else. The next witness of the respondent was M E who stated that he tried three times to resolve disputes of the parties herein and that he was aware that the respondent had left the matrimonial home three times and that he convinced her to go back. He stated that the appellant always beat his wife.

In the judgment, the learned Kadhi said the plaintiff availed four witnesses. The truth of the matter is the respondent testified and availed two witnesses which means in total they were only 3 witnesses for the respondent. This means that the Kadhi made assumptions which should not have happened. The evidence on record also did not capture the issued determined by the Kadhi. The effect of this was a mistrial.

That is not all. The appellant testified and denied the allegations of the respondent in a very short statement and asked her to return to her matrimonial home without any condition. The matter was then fixed in court for further hearing on 5th April 2016. On the 4th April 2016 the appellant stated that he wanted to travel to Nairobi to help his brother who was in hospital, and the court fixed the matter for further hearing on 19th April 2016. However on the 5th April 2016 in the absence of the appellant, the respondent informed the court that the appellant was lying and was present in Wajir. The court then went ahead to rely on that statement, and added that the appellant had made an attempt to bribe the court and fixed judgment for 6th April 2016 which was just the next day in the absence of the appellant.

In my view, this was also another mistake which resulted in a mistrial. The court having allowed adjournment to 19th April 2016, should not have entertained the proceedings of 5th April 2016 in the absence of the appellant. The court should not have relied on an attempt of the appellant bribing the Kadhi in the absence of the appellant. The court should not have fixed the judgment for 6th April 2016 while the case was for further hearing on 19th April 2016 which was more than 10 days away.

In the process the appellant was not able to call witnesses and present his side of the case, and proceedings were also conducted in his absence to his prejudice without his knowledge and judgment date fixed in his absence. That was a serious mistake and a mistrial. The appeal will thus succeed

The appellant has claimed that the record of the trial court was changed deliberately. Though I see cancellations for the date 7th March 2016 , I am not convinced that there was tampering with the original record. I however find that there was a serious irregularity in the way the proceeding were conducted.

The Kadhi assessor has suggested that the appellant be paid Ksh.30,000 subject to the ruling on the dowry. I find no basis for that payment at this stage, as it is not easy to determine how that amount was arrived at.

In allowing the appeal I am mindful of the fact that it is because of a technicality of a mistrial as the court proceedings were irregular. This is also a family matter where the marital relationship of two persons is at issue.

I thus allow the appeal, set aside the Kadhi’s judgment and order that there be a fresh trial before a Kadhi at Wajir with jurisdiction except the Kadhi who conducted the previous hearing, based on the same plaint and defence filed. I also order that the parties will bear their respective costs of the proceedings up to this appeal and that costs will now follow the fresh decision to be made by the Kadhi the fresh trial. The matter will be mentioned before the Kadhi at Wajir on 26th July, 2017 for further progress.

These are the orders of the court.

Dated and delivered at Garissa on 18th July, 2017.

GEORGE DULU

JUDGE