[2017] KEHC 781 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 29 OF 2015

Z K N..................................................................................APPELANT

-VERSUS-

J K Z ............................................................................RESPONDENT

(Being an appeal from the judgment and decree by Hon. J. W. Gichimu, Acting Principal Magistrate in Tigania Senior Principal Magistrate's Court Divorce Cause No. 3 of 2012delivered on 30/04/2015).

JUDGMENT

1. This is an appeal arising from the dismissal of the Appellant's divorce cause which he filed in the Magistrate's Court at Tigania. The cause was Senior Principal Magistrate's Divorce Cause No. 3 of 2012 (hereinafter referred to as “the suit”).

2. By a Petition dated 18/04/2012 the Appellant herein, ZKN, sought to divorce his wife one JKZ, the Respondent herein. He put forth three grounds in support of the divorce being adultery, desertion and cruelty. The suit was defended by the Respondent who filed an Answer to Petition dated 10/05/2012. The Respondent apart from opposing the suit made a counter-claim on maintenance.

3. The suit proceeded for hearing where both parties were represented by Counsels. The Appellant testified and called four witnesses. The witnesses were HKD (PW2)who was the Chief of Kimachie Location and an elder brother to the Appellant, JKK (PW3)an elder sister to the Appellant, DMN (PW4)a first cousin to the Appellant and GPB (PW5). The Respondent did not call any witness.

4. The trial court in its judgment rendered on30/04/2015dismissed the Appellant's suit as well as the prayer for maintenance and ordered each party to bear its own costs.

5. Being dissatisfied with the dismissal of the suit, the Appellant preferred an appeal and filed a Memorandum of Appeal dated 28/05/2015 wherein he wholly challenged the judgment on several grounds contending that the trial court erred in dismissing the suit despite adequate evidence in proof of the Appellant’s claim.

6. The Appellant thereafter filed a Record of Appeal and a Supplementary Record of Appeal and on the concurrence of the Counsels directions were given that the appeal be disposed of by way of written submissions and timelines for filing of the respective submissions were set. Whereas the Appellant filed the submissions and referred to several judicial decisions, the Respondent did not file any submissions. The Appellant’s Counsel thereafter highlighted on the submissions and urged this Court to allow the appeal.

7. This being the Appellant's first appeal, the role of this Court as the appellate Court of first instance is well settled. This Court is duty bound to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278and Kiruga –versus- Kiruga & Another (1988) KLR 348.

8. It was further held in the case of Hahn vs. Singh (1985) KLR 716that the appellate court will hardly interfere with the conclusions made by a trial court after weighing the credibility of the witnesses in cases where there is a conflict of primary facts between witnesses and where the credibility of the witness is crucial. To that end, I wish to confirm that this Court has carefully perused the pleadings, the proceedings, the judgment, the Record of Appeal, the Supplementary Record of Appeal, the submissions and the judicial decisions on record.

9. As I venture into the analysis and eventual determination of this appeal, it is imperative to note that the Petition in the suit was filed sometimes in April 2012 when the guiding law was the Matrimonial Causes Act, Chapter 152 of the Laws of Kenya which Act was repealed by the enactment of the Marriage Act No. 4of 2014(hereinafter referred to as ‘the Act’) which came into force on 20/05/2014. On transition, Section 98(2) of the Act provides that any proceedings commenced earlier under any written law shall, so far as practicable, be continued in accordance with the provisions of the Act.

10. I will now revisit the evidence on record to ascertain whether the suit was proved in line with Section 107of theEvidence Act, Chapter 80 of the Laws of Kenya which provides that: -

“107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

11. On theground of desertion, it was the Appellant's testimony that the Respondent had severally deserted their matrimonial home. He cited four instances being sometimes in 1995 when she deserted the home for a week, sometimes in 1997 when she deserted the home for another week, in January to July 2010 and since January 2012 to date. PW2, PW3, PW4 and PW5 attempted to corroborate the evidence of the Appellant. Their evidences were however countered in cross-examination and when the Respondent contended that she never deserted the Appellant since it was the Appellant who had demolished the matrimonial home thereby forcing her to take refuge elsewhere

12. But what is desertion?

The Black's Law Dictionary, 9th Edition at Page 511 defines “desertion” as follows: -

“desertion, n.(16c) The willful and unjustified abandonment of a person's duties or obligations, especially to military service or to a spouse or family.

In Family Law, the five elements of spousal desertion are (1) a cessation of cohabitation; (2)the lapse of a statutory period; (3) an intention to abandon; (4) a lack of consent from the abandoned spouse; and (5) a lack of spousal misconduct that might justify the abandonment ....”

13. Section 65(c) of the Act, as well as the repealed Matrimonial Causes Act, provide that desertion can only be a ground of divorce if it is proved that one party deserted the other party for at least three years immediately preceding the date of presentation of the Petition. Clearly, the Appellant did not prove this ground as at the filing of the Petition in April 2012 the Respondent had allegedly deserted since January 2012, a period of only three months. The ground of desertion therefore fails.

14. I will now turn to the ground of cruelty. There is consistent case law on what constitutes cruelty as a matrimonial offense. In Meme -vs- Meme (1976 – 80) KLR 17, it was held that to establish cruelty, the Petitioner must show to the satisfaction of the Court:-

i) Misconduct of a grave and weighty nature;

ii) Real injury to the complaint's health or reasonable apprehension of such injury;

iii) That the injury was caused by misconduct on the part of the Respondent; and

iv) That on the whole the evidence of the conduct amounted to cruelty in the ordinary sense of the word.

24. In Mulhouse -vs- Mulhouse (1964) 2 All ER 50, which Chesoni, J (as he then was) cited with approval in Meme -vs- Meme(supra), Sir Jocelyn Simon, P. while considering the gravity and weight of misconduct that would constitute cruelty; stated as follows: -

“[M]isconduct must be proved of a grave and weighty nature. It must be more than mere trivialities. In many marriages there are occasional outbursts of temper, occasional use of strong language, occasional offended silences. These are not sufficient to amount to cruelty in ordinary customs, though if carried to a point, which threaten the health of the other spouse, the law will not hesitate to give relief”.

25. On the nature of the injury to the Petitioner's health, real or apprehensive, that is necessary to prove cruelty, his Lordship stated that: -

“[I]t must be proved that there is a real injury to the health of the complainant or reasonable apprehension of such injury. Of course, if there is violence between the parties the Court will not stop to inquire whether there is a general injury to health; but in the absence of acts of violence which themselves cause or threaten injury, the law requires that there should be proved a real impairment of health or a reasonable apprehension of it”.

26. In Nunzio Colarossi -vs- Michelina Colarossi (1965) EA 129, the then Court of Appeal of Eastern Africa stated that: -

“An essential element of any petition based on cruelty is, however, that the party seeking relief must prove actual or probable injury to life, limb or health. For this reason, it is seldom indeed that a decree is granted upon a single act of cruelty though, should that act be serious enough and result in injury then the Court will grant the decree”.

27. The Court of Appeal in JSM -vs- ENB (2015) eKLR however came out so clearly in giving direction to Courts on how to handle the aspect of cruelty. The Court stated that:-

“..... there is no comprehensive definition of cruelty. Each petition founded on cruelty must be decided on its own facts because whether cruelty is proved or not is a question of fact and degree. The conduct complained of must be looked on holistically and in light of the parties themselves. Therefore it is not very helpful to rely on facts of previously decided cases as precedent”.

28. The Appellant recounted several instances where the Respondent was allegedly cruel to him. A slap in 1985, hit with a stick in 1988, hit with a metallic spoon on the face in 2004/2005, pulling of the genitals, carrying away of all the household items from the matrimonial home, selling all the foodstuff and produce, insults before the children and other members of public, no peaceful nights, and threats to kill the Appellant. The Appellant contended that he used to report the incidents to PW2, his elder brother and who was also the Chief of the area. None of these instances were reported to the police. The other witnesses also alluded to some of the incidents but none witnessed the commission of any.

29. The Respondent denied the allegations and contended that indeed it was the Appellant who was cruel to herby selling all the family cows, failing to pay school fees for their children, generally not providing for the family and severally assaulting her. She produced a P3 Form (D Exhibit 1) in proof of the assault but stated that she forgave the Appellant.

30. By placing the evidence of the Appellant and that of the Respondent side by side, I find that the ground of cruelty has not been proved. The Appellant’s evidence is far below the standard set by case law to amount to cruelty.

31. in respect to the ground of adultery, the Appellant did not make any of the alleged adulterers with the Respondent as a co-respondent(s) in the Petition. He however mentioned several of them in evidence. Section 9 of the repealed Matrimonial Causes Actmade it mandatory, unless one is excused by the Court on special grounds from doing so, for the husband to make any alleged adulterer with the wife as a co-respondent(s) in a Petition seeking divorce on ground of adultery. I have carefully perused the record before the trial court and did not come across grant of such leave given that the Appellant never enjoined any of the alleged adulterers as co-respondent(s) in the Petition.

32. Be that as it may, the Act does not have such a requirement. I will therefore consider whether adultery was proved. The Appellant mentioned several people as adulterers with the Respondent. The father of the Respondent’s son called Mutua, two police officers at Kimachia market together with Gichuru, Nthela and Mutebari, a man called Raphael Mutongira whom she brought into their matrimonial home in his absence and he was so informed by one of his sons. Some witnesses stated that the fact that the Respondent is adulterous is a well-known thing within Kimachia market.

33. The standard of proof on adultery as a ground of defence was well discussed by the Court of Appeal in Wangari Mary Josephine Maathai vs. Andrew Stephen Mwangi Maathai (1980) eKLR as follows: -

‘…The charge of adultery is a serious matrimonial offence. Circumstantial evidence in proof thereof ought to be carefully and cautiously considered, the court being required to move with great care. The standard of proof required is very high. The charge must be proved clearly, beyond establishing a mere balance of probabilities or preponderance of probability or a mere suspicion and opportunity to commit adultery. It must be proved to the satisfaction of the court, which means that the court must be satisfied beyond reasonable doubt or satisfied so as to feel sure…’(emphasis added).

34. A look at the evidence adduced by the Appellant and his witnesses does not come near the required standard of proof. The evidence is full of hearsay and suspicions. The Appellant failed to prove the ground of adultery in the suit.

35. As the three grounds in support of the Petition have failed, I would have, without any hesitation, dismissed this appeal. However, there is need to look at the Act and in view of the other grounds of divorce which were introduced on enactment. Section 65 of the Act introduced two more grounds of divorce. They are exceptional depravity by either party and if the marriage has irretrievable broken down.I believe the two further grounds were introduced as to take care of the instances where parties would not be able to remain married but fall short of the proving the traditional grounds of adultery, cruelty and desertion whose standard of proof remain high.

36. The Appellant in paragraph 9 of the Petition pleaded as follows: -

‘9. The Respondent has frustrated and ignored all reconciliatory efforts initiated at the behest of the petitioner, and so, the marriage between the parties has irretrievably broken down, beyond salvage.’

37. The Appellant led evidence to the effect that all is not well in his marriage with the Respondent. There are instances where the Appellant changed the locks in the matrimonial home and locked it. The Respondent had to get court orders to access the home. The Respondent also contended that the Appellant demolished the matrimonial home and she was forced to seek refuge elsewhere. Indeed, the Respondent stated as follows during cross-examination: -

‘…..I do not live with the petitioner as my husband. We are not carrying conjugal rights as husband and wife. The last time we slept together was in 2010. I depend on myself for provision……..I do not want to file any claim against JK. He can stay with her….’

38. On being asked why she would not want the marriage to be dissolved in light of all those problems, the Respondent had the following to say: -

‘The marriage is still important to me as I have no other husband……My husband is an adult education officer. The petitioner should take care of me.’

39. The parties have lived separately for the last 7 years now. For all that time, the Appellant has not provided any maintenance to the Respondent neither have they enjoyed any conjugal rights. Infact the Respondent stated that he does not depend on the Appellant as she lives on her own. There is evidence to the effect that the witnesses endeavored to reconcile the parties but in vain. The Appellant and all his witnesses stated that there is no value in sustaining a marriage which does not serve any purpose. To them, the marriage has reached a dead end and there is no way the parties can live together.

40. According to the Respondent, the only reason why the marriage should subsist is because ‘My husband is an adult education officer. The petitioner should take care of me‘The Respondent does not appear to be keen to make up her marriage. Infact, she stated that the Appellant can continue staying with his other wife, Julie Kathure as long as she is maintained. That is an indicator that the parties are not likely to reunite. There has been persistent and unresolved disagreements between the Appellant and the Respondent to the extent that a reasonable prospect of reconciliation is illusory. The couple have irreconcilable differences and as truly stated by the Appellant and his witnesses, such a union serves no meaningful purpose.

41. Whereas Article 45 of the Constitution vouches for the protection of the family unit as a natural and fundamental unit of the society, it will not serve any purpose to force parties to remain in a marriage in instances where their union has truly broken down irretrievably. As Madam, J. (as he then was) stated in NVN (2008)1KLR 16: -

‘If two spouses have reached the point of not being able to live together reasonably happily for causes some of which may appear trifling to an outsider but are of vital effect upon their lives and which are felt by them to the intolerable, or unreasonable to continue to bear them, they are entitled to be released from their matrimonial union…..’

I say no more.

42. I find that the marriage between the Appellant and the Respondent has irretrievable broken down. As to the finding of the trial court, the court was right in dismissing the three grounds of divorce of adultery, cruelty and desertion. However, since the law had changed and there were more other grounds for divorce and the Appellant having pleaded one of them being that the marriage had irretrievably broken down, which is a ground under the Act, with tremendous respect, the trial court erred in not considering that ground. From the way the court evaluated the evidence and the law, I have no doubt that had it considered the Petition in light of the ground that the marriage had irretrievably broken down it would have arrived at a different finding.

43. In light of the foregone, this Court now makes the following orders: -

a) The appeal is hereby allowed and the order of the trial court dismissing the Petition is accordingly set-aside.

b) The marriage between the Appellant and the Respondent celebrated on 03/05/1980 is hereby dissolved and a decree nisiis issued which shall be made absolute after three months.

c) The prayer for maintenance is declined.

d) Each party to bear its own costs of the suit as well as the appeal.

Those are the orders of this Court.

DELIVERED, DATED and SIGNED at MERU this 21st day of July 2017.

A. C. MRIMA

JUDGE