[2013] KEHC 232 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

DIVORCE CAUSE NO. 2 OF 2013

IN THE MATTER OF: THE MARRIAGE ACT (CAP 150)

AND

IN THE MATTER OF: THE MATRIMONIAL CAUSES ACT (CAP 152)

AND

S O A …................................PETITIONER

VERSUS

W O O …..........................RESPONDENT

RULING

Before me is the petitioner's Notice of Motion dated 19th March 2013 seeking three key prayers:

“2. That the respondent be ordered to pay for the maintenance of the petitioner/applicant

3. That the respondent be ordered to pay the applicant alimony pending the determination of this suit.

4. That custody, care and control of the children remain with the respondent pending the final determination of this suit.”

The Notice of Motion is supported by the petitioner's affidavit which states inter alia that she is the “deserted” wife of the respondent and unemployed. That she has been living separately from the respondent since three years ago. That the respondent though “a man of means” has neglected to provide for her. She has also filed an affidavit of means indicating that she requires about shs. 48,000/- per month for her upkeep.

Although the respondent did not file an affidavit of means, he swore a replying affidavit in opposition to the Notice of Motion. He contends that the applicant petitioner deserted him and the two issues of the marriage who are currently in his care. That the respondent is responsible for all their needs including school fees, subsistence, clothing etc while the petitioner has not contributed in any way to caring for them. That the exaggerated claim for maintenance will cripple him financially even as the petitioner lives a reckless and spend thrift life, indulging in alcohol.

The parties filed written submissions in respect of the application. I have considered these in light of the affidavits filed. There is no dispute that the couple's two issues of marriage are presently in the care and physical custody of the respondent. The petitioner who says she is not working, admittedly has not been contributing in any way to their welfare. One of her prayers is that the children remain the responsibility of the respondent.

As I observed recently in Pamela Ann Walker Munro vs Charles Michael Angus Walker Div. Cause No. 1 of 2010under the 2010 Constitution a wife who is not incapacitated has an obligation to make a living to provide for herself and her family. She cannot sit pretty while continuing to demand that her husband supports her completely without making any effort herself. That matter was also considered in the decision of Kariuki J, as he then was in W. M. M. vs B. M. L. [2012] eKLR which I quoted in the above case as follows:

“it (Article 45(3) of the Constitution) relates to and recognizes the personal rights of each spouse to enjoy equal rights to property and personal freedoms and to receive equal treatment without discrimination on the basis of gender. Article 45 (3) is in harmony with article 21(3) which enshrines equality of men and women ...in light of Article 45(3), the criteria in determining the rights and obligations of spouses in a marriage must treat the husband and the wife as equals, and neither has a greater or lesser obligation than the other in relation to maintenance. In short, in cases where as here, spouses have no children, a wife does not enjoy advantage over a husband or the vice versa and the age old tradition which men were deemed to be sole breadwinners and to carry the burden of maintaining their spouses does not hold true any more. Under the Constitution, the respondent has a duty to support and maintain herself no less than the petitioner has to support himself and there is no greater obligation on the part of the petitioner to support himself than there is on the respondent to support herself. No spouse who is capable of earning should be allowed to shirk his or her responsibility to support himself or herself...”

In the present case the petitioner does not seem to want to share the husband's responsibility concerning their children or herself. It may or may not be that she is a spendthrift living large while not earning an income or making an attempt. The court must balance her needs carefully against the respondent's, and in particular the children of the marriage (See the Children Act).

No doubt the affidavit of means reflects a rather high standard of life for a person who is not employed and who is living alone. Rent of shs. 12,000/- for example in this region appears rather exaggerated. All in all, I think it may be fair to reduce the petitioner's pleaded expenses by about half, to shs. 20,000/-. Of this sum, she ought to contribute at least half through self generated income.

At the same time, the court would be loath to leave her destitute for this period when she has no source of income. Accordingly I order that the respondent pays a sum of shs. 10,000/= (ten thousand) per month for the petitioner's upkeep. I also allow prayer 4 of the Notice of Motion but decline prayer 3 of the Notice of Motion. Each party will bear own costs.

Delivered and signed at Malindi this 19th day of December, 2013 in the presence of Mr. Okuto holding brief for Messrs Otieno for petitioner, No appearance for respondent

Court Clerk – John

C. W. Meoli

JUDGE