[2015] KEKC 25 (KLR)
The court found that the alleged agreement for the sale of the house to finance the plaintiff's medical treatment was not validly executed, as there was no evidence the defendant signed the agreement before an advocate or that he had locus to transfer the property. The inconsistencies in the document and lack of...
Source-derived case information.
- Citation
- [2015] KEKC 25 (KLR)
- Parties
- Plaintiff: NAM; Defendant: ARA
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 168 of 2014
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Claim for sale of house dismissed; orders for payment of dowry, eddat maintenance, refund for electrical items, and KES 500,000 for medical treatment granted.
- Judges
- AH Athman
- Legal Topics
- Divorce Proceedings, Dowry Payment, Maintenance Orders, Domestic Violence, Property Disputes, Islamic Family Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NAM
Plaintiff
ARA
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant entered into a valid agreement to sell the suit house to finance the plaintiff's medical treatment.
- 2 Whether the plaintiff is entitled to dowry, eddat maintenance, refund for electrical items, and medical expenses as claimed.
Ratio Decidendi
The court found that the alleged agreement for the sale of the house to finance the plaintiff's medical treatment was not validly executed, as there was no evidence the defendant signed the agreement before an advocate or that he had locus to transfer the property. The inconsistencies in the document and lack of proof of ownership led to dismissal of the claim regarding the house. However, the court relied on the consent order previously recorded and adopted, in which the defendant admitted causing the plaintiff's injuries and undertook to treat her. Given the visible seriousness of the plaintiff's injuries, the court ordered the defendant to pay KES 500,000 to finance her treatment, in...
Court Disposition
Claim for sale of house dismissed; orders for payment of dowry, eddat maintenance, refund for electrical items, and KES 500,000 for medical treatment granted.
Orders
- Defendant to pay plaintiff KES 45,000 as dowry.
- Defendant to pay plaintiff KES 45,000 as eddat maintenance.
Full Case Text
Judgment text and source record
23 paragraphs
NAM v ARA (Civil Case 168 of 2014) [2015] KEKC 25 (KLR) (28 May 2015) (Judgment)
N A M v A R A [2015] eKLR
Neutral citation: [2015] KEKC 25 (KLR)
Republic of Kenya
In the Kadhis Court at Mombasa
Civil Case 168 of 2014
AH Athman, PK
May 28, 2015
Between
NAM
Plaintiff
and
ARA
Defendant
Judgment
1. The plaintiff claims the defendant did not pay her dowry, that he was violent, cruel and severally assaulted her resulting to head fracture and bleeding needing medical treatment in India. She claims the defendant agreed to give out his house to be sold to finance her treatment but reneged on his agreement and refuses to handover the house. She prays for:1. Divorce certificate2. Dowry, past and eddat maintenance3. [Refund for] Electrical items the defendant sold.4. Sale of the house for her medication
2. The defendant denied the plaintiff's claims. He specifically denies having agreed to sale his family house to finance plaintiff's medication.
3. The parties were married under Islamic law on September 5, 2012 at Mombasa. On July 8, 2014, the defendant divorced her. The parties recorded the following consent on September 24, 2014:1. The parties are divorced w.e.f. July 8, 20142. Defendant to pay dowry KES 45,000. 003. Defendant to pay the plaintiff KES 45,000. 00 being edda maintenance4. Defendant to pay the plaintiff KES 25,000. 00 being refund of her electrical items sold by defendant5. That the defendant shall treat the plaintiff having caused her injuries.6. No orders as to costs7. The issue of the house to go trial.
4. The consent was adopted by court. The only issue remaining for determination is whether or not the defendant entered a valid agreement to have the suit house without land on Plot No. […] at Kisauni sold to cater for plaintiff's medication.
5. Plaintiff's evidence is AAK, her mother [PW1] and the sale agreement dated March 24, 2014. PW1 testified she heard the defendant say he had given the house to the plaintiff. However under cross examination she said she did not know issues relating to the house. Evidence adduced in court show although the agreement is commissioned by an advocate, It was not signed before him. The defendant never appeared before him to append his signature on the agreement. The defendant denies the signature is his. There is no evidence that the house belongs to the defendant to determine that he had locus to execute the alleged agreement.
6. Mr Hamza submitted we have no jurisdiction to adjudicate on matters of agreements. This was an agreement in a marital dispute between two Muslims where the couple have divorced. The agreement is part of the divorce dispute. We have jurisdiction to hear and determine such disputes. However in this case there document has so many inconsistencies and cannot support the agreement of transfer or sale of the house to finance plaintiff's medication. The claim of the agreement is dismissed for lack of sufficient proof.
7. Having said that, the defendant did, through consent entered and adopted by court, admit having caused the plaintiff's injuries and undertook to treat her. The plaintiff had visibly sustained serious injuries. I direct that the defendant pays the plaintiff KES 500,000. 00 to finance her treatment.Orders accordingly.
DATED AND DELIVERED AT MOMBASA ON 28TH MAY 2015. ABDULHALIM H. ATHMANPRINCIPAL KADHIIn the presence ofMr. Yusuf K. Abdulrahman, Court assistantM/S Mwanhunga Mtana & Co. for plaintiffMr. Hamza for defendant