[2022] KEHC 11239 (KLR)

PWK v LKK (Civil Appeal 55 of 2016) [2022] KEHC 11239 (KLR) (Family) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11239 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal 55 of 2016

AO Muchelule, J

June 16, 2022

Between

PWK

Appellant

and

LKK

Respondent

(Being an appeal from judgment and decree of the Chief Magistrates Court at Nairobi Case No. 285 of 2005 by Hon. Leah W. Kabaria (Ms) R.M. dated 2nd August 2013))

Judgment

1. The appellant P.W.K. and the respondent L.K.K. got married on 3rd December 1988 at St. Benedict’s Catholic Church, Thika Road in Nairobi. They got two daughters, both of whom are adults.

2. On 14th December 2005 the respondent petitioned the Chief Magistrate’s Court at Milimani for the dissolution of the marriage on grounds of wrongful desertion and cruelty. He also sought orders of custody, care and control of the children. On 7th February 2006 the appellant filed answer to the petition in which she denied desertion and cruelty. She asked that the petition be dismissed with costs. On her part, she sought to be awarded custody, care and control of the children, and maintenance for the children and herself.

3. Following several adjournments, hearing of the cause begun on 12th March 2013 when the evidence of the respondent was taken. The appellant, who resided and worked in the U.S.A., was absent. Her counsel was present and cross-examined the respondent. The respondent closed his case. The court allowed the appellant’s counsel’s request for time to contact her client before taking a date for the court to hear her evidence. The matter was mentioned severally, each time with appellant being absent but being represented. Finally, on 29th May 2013 the court indicated that it was not going to indulge the appellant any further. It had been informed that the appellant’s counsel had on 16th May 2013 filed an application to cease acting. When it inquired, the application had not been served on the respondent and a date for its hearing had not been taken. The court had placed the matter aside to allow the appellant’s advocate to indicate how it was going to serve the client who was resident in the U.S.A. The advocate did not return to give the court the answer to the question it had asked regarding service. It was at that point that the court, in its detailed ruling, traced the history of the matter and how each time the appellant had been indulged but had not attended hearing. It declined to adjourn any further. A judgment date was set. The judgment was delivered on 2nd August 2013 allowing the petition, and dissolving the marriage. Decree nisi was issued on 5th March 2014, and made absolute on 6th March 2014.

4. On 16th October 2013 the appellant filed application for extension of time to appeal. On 13th March 2014 the respondent filed grounds opposing the application. On 10th July 2014 he filed a replying affidavit to state that on 8th April 2014 he had married another lady under the Marriage Act (Cap 150). Application for extension of time was allowed, hence this appeal.

5. The appellant’s appeal contained the following grounds:-“1)That the learned magistrate conducted the proceedings which gave rise to the judgement appealed against in a manner which contravened the Appellant’s right under Article 50 of the Constitution to a fair trial;2)That the learned judge erred in law by ignoring wholly the constitutional mandate under Article 159(2) of the Constitution requiring that justice be administered without undue regard to procedural technicalities in hearing the suit in the absence of the Appellant who resides and works in the United States of America;3)That learned magistrate erred in not holding that the residence of the Appellant in the United States of America and her employment were relevant factors in determining a fair procedure for the hearing of the case;4)That on 29th April 2013, the learned magistrate erred in denying the Appellant who lives in the United States an adjournment to a date in 23rd December 2013 when she gets her leave, which she needed to exercise her right to a fair hearing;5)That the learned magistrate erred in concluding the hearing on 29th May 2013 when the Appellant did not have counsel;6)That on 29th May 2013 the learned magistrate erred in proceeding to conclude the hearing whilst there was pending before her Honour the appellant’s advocates’ notice of motion dated 15th May 2013 in which her advocates then, sought leave to cease acting and the said application had neither been served on the appellant, nor prosecuted;7)That the exercise of discretion against the appellant on both 29th April 2013 and 29th May 2013 respondent was plainly wrong in the circumstances of this case;8)That the learned magistrate ignored today’s principle of justice which requires that the court facilitates a just, expeditious and proportionate resolution of a civil dispute;9)That the learned magistrate erred in holding that the respondent had proved his case as required by section 8 of the Matrimonial Causes Act;10)That the learned magistrate ignored the fact that the Matrimonial Causes Rules made under the Matrimonial Causes Act, constituted a full code of procedure and further that there was no scope for applying the Civil Procedure Rules and civil standard of proof;11)That the learned magistrate applied to matrimonial proceedings principles of civil procedure when those proceedings are governed wholly by the Matrimonial Causes Act;12)That the learned magistrate erred in finding that the respondent had proved his case beyond a reasonable doubt as required vide the Court of Appeal decision in Mathai –v- Mathai [1976-1980] KLR 1689. 13)That the learned magistrate erred in following the decision in court of Appeal in Kamweru –v- Kamweru, [2000]eKLR which was decided per in curium in that the correct decision in Mathai –v- Mathai was not referred to it.”It was sought that the appeal be allowed and the judgment be substituted with an order dismissing the petition with costs, and that, in the alternative, the judgment be set aside and the cause tried by another magistrate. The appellant complained that cruelty had not been proved on the required standard.

6. Directions were given that the appeal be heard through written submissions. Dr. Kamau Kuria (S.C.) who had taken over the conduct of the case for the appellant following the impugned judgment filed written submissions in support of the appeal.

7. This being a first appeal, this court is mandated to reconsider the evidence before the trial court, evaluate it itself and draw its own conclusions, bearing in mind that it did not see or hear the witnesses and make due allowance for that (Selle & Another –v- Associated Motor Boat Co. Ltd & Others [1968]EA 123).

8. The main issues for determination are:-a.whether the trial court violated the appellant’s right to a fair hearing when it proceeded to hear and conclude the cause without allowing the appellant to be heard, and when it did not adjourn when informed that her counsel had filed an application to cease acting;b.whether, on the evidence, the respondent’s petition was proved; andc.whether the appeal has been overtaken by events, now that the respondent has since remarried.

9. Beginning with issue (c), the fact that the respondent has moved on and married another lady has caused me a lot of anxiety. This is because, if the appeal is allowed, either by the finding that there was no fair trial and therefore the petition has to be retried or finding that the petition was not proved, it means that the parties will still be married. The consequence would have a serious legal implication on the respondent’s subsequent marriage. The question would be, whether this court can make orders nullifying that subsequent marriage on the respondent’s lack of capacity without there being a proper cause in that regard, or whether this court can in these proceedings condemn the respondent’s new wife without her being afforded a hearing.

10. I know that the finding that the appellant was cruel will leave her with a scar forever. However, if the parties have lived apart since about 1996, is there still a marriage between them? Why would the appellant be pushing to be seen to be technically married when, for all purpose, the marriage between her and the respondent irretrievably broke down and had ended in 1996 when the petition was filed?

11. Be it as it may, it is an important issue when the appellant claims that her right to a fair trial was compromised in the proceedings before the trial court. The history of the cause was that when the petition was filed on 14th December 2005, the respondent was promptly served and on 8th February 2004 she filed her answer to the petition through Ngatia & Associates. Both sides changed advocates severally. The registrar’s certificate was issued on 27th June 2006, and the matter first listed for hearing on 4th September 2006. Between that time and 29th May 2013, the matter came for hearing nine (9) times. On each occasion the respondent’s advocate had invited the appellant’s advocate to the registry to take a suitable hearing date. On each of those occasions the appellant’s advocate did not attend, leading to the taking of a date and service being effected. On 4th September 2006 the matter would not be heard because neither party was ready. On 21st March 2007 the matter was adjourned because the appellant was absent, although her advocate was present. The same for 4th November 2008, 6th July 2009 and 11th November 2012. On each of these occasions the appellant was said to be out of the country. On 12th March 2013 the matter came for hearing. The appellant was absent (still out of the country) and her counsel asked for adjournment. The court directed that the respondent’s evidence be taken and the matter adjourned to wait for the appellant to attend to testify. The respondent testified and was cross-examined. The court fixed the matter for mention on 16th April 2013 for the appellant’s advocate to indicate when she would be present to testify. The matter was mentioned on 29th April 2013. The parties agreed that the cause be heard on 29th May 2013. Come that day, the appellant was absent but her advocate was present. The advocate informed the court that she had filed an application to cease acting for her client. She had not served the application, either to her client or to the other side. The application did not have a hearing date. The court was willing to hear the application on a future date if an indication was made on how the appellant who was out of the country, was going to be served. The file was placed aside for the advocate to return with the indication on the mode of service. The advocate stepped out and did not return. In these circumstances the court decided to decline the request to adjourn. It concluded the matter and, on a scheduled date, rendered its judgment.

12. It is evident that between 4th September 2006 and 29th May 2013, there was no single day that the appellant attended court for hearing, or at all. Except for one occasion, the respondent was always ready for hearing. Yes, the appellant was working and living in the U.S.A. But, she had submitted herself to the jurisdiction of the court. Either party was entitled to a fair hearing but was also entitled to expeditious disposal of the matter. The appellant’s case was that, because she was working in the U.S.A., the only time she was going to be available was in December when she took her leave. That was when she could travel to Kenya to take the trial. The unfortunate bit is that on several occasions her counsel was invited to go to the registry to take a suitable hearing date. On each occasion, counsel did not turn up leading to the respondent’s counsel taking a date and serving. Even after the respondent had testified, the matter was adjourned to get the appellant to indicate when she would be available to testify. In short, all efforts were made by the court to accommodate the appellant and to let her come to court to be heard on the petition. I have considered the lengthy and thorough written submissions by counsel for the appellant, but however expansive or inclusive or constructive manner that I may give to the principle of the right to a fair trial, I consider that, given the facts of this case, the conduct of the appellant was not only dilatory but also intended to obstruct justice. I do not find that her right to a fair trial was compromised in any way.

13. On the question whether there was sufficient evidence to prove the petition, it is notable that the respondent was relying on wrongful desertion and cruelty. On the ground of desertion, the respondent told the court that in the year 1996 the appellant had deserted the matrimonial home in 1996 and in 2006 had relocated to the United States of America. On the question of cruelty, his evidence was that they were staying in company house. She locked him out of the house. He had to move to a hotel. He stated that she was rude to him. He asked his father to intervene which he did. The appellant said she was not ready to take him back. This was apparently a company house at his instance. He asked her to vacate it. He got her to get another house. The appellant did not testify, and therefore the respondent’s evidence was not controverted. If for none (9) years the appellant had deserted the matrimonial home without justifiable reason, that was enough to end the marriage.

14. Counsel for the appellant submitted that a proper standard had not been applied to find that cruelty had been proved; that it was wrong to rely on Kamweru –v- Kamweru [2000]eKLR when the standard had been set in Mathai –v- Mathai [1976 – 1980] KLR 389. In other words, counsel was saying that what had happened to the respondent was not cruel; that the appellant’s conduct in locking the respondent out of the matrimonial house to the extent that he had to relocate to a hotel was not grave and weighty enough to be described as cruel in the ordinary sense of the word (Meme –v- Meme [1976-1980]1KLR 17).

15. The trial court was correct to point out that:-“The courts have been quick to raise it that what constitutes cruelty is a question of fact which ought to be determined bearing in mind the individuals and the circumstances of the case.”The court cited Justice Madan in N.V.N. and Another, Divorce Cause No. 9 of 1975 in which he observed that whether cruelty or a matrimonial offence has been established is a question of fact and degree which should be determined by taking into account the particular individuals concerned and the particulars concerned and the particular circumstances of the case rather by any objective standard. Justice Madan had gone on to cite with approval the words of Lord Wilmer in Hadden-v- Hadden [1962] 2 All ER 366 at page 901 where it was stated that:-“Any course of conduct intentionally pursued, provided that it had some impact on the spouse may in appropriate circumstances justify a finding of cruelty.”

16. Lastly, the court was alive to the fact that the standard of proof was not beyond reasonable doubt, but it was higher than what was required in civil cases. The evidence had to leave the court at the level of feeling certain or sure that the matrimonial offence of cruelty had been committed. I am satisfied that, on the evidence, that level of certainty was reached by the trial court.

17. In conclusion, I find no merit in the appeal and dismiss it with costs.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JUNE 2022. A.O. MUCHELULEJUDGE