[2012] KEHC 1869 (KLR)
The court found that the Respondent failed to provide new or previously unavailable evidence to justify a review of the alimony pendente lite order. The Respondent did not make full and frank disclosure regarding his financial means, specifically the Kshs.15,000,000 in fixed deposit accounts, nor did he demonstrate...
Source-derived case information.
- Citation
- [2012] KEHC 1869 (KLR)
- Parties
- Petitioner: Z.Y.S.A; Respondent: Y.S.A.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 2 of 2010
- Procedural Posture
- Matrimonial Cause / Ruling on Application for Review of Alimony Pendente Lite Order
- Outcome
- application for review dismissed with costs to the petitioner
- Legal Topics
- Alimony Pendente Lite, Maintenance Orders, Review of Orders, Full Disclosure, Matrimonial Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Z.Y.S.A
Petitioner
Y.S.A.
Respondent
Procedural Posture
Matrimonial Cause / Ruling on Application for Review of Alimony Pendente Lite Order
Legal Issues
- 1 Whether the order for payment of alimony pendente lite should be effective from the date of the application or the date of the ruling.
- 2 Whether the amount of alimony should be reviewed from Kshs.100,000 to Kshs.30,000 as suggested by the Respondent.
Ratio Decidendi
The court found that the Respondent failed to provide new or previously unavailable evidence to justify a review of the alimony pendente lite order. The Respondent did not make full and frank disclosure regarding his financial means, specifically the Kshs.15,000,000 in fixed deposit accounts, nor did he demonstrate good faith by paying any portion of the ordered alimony. The court reaffirmed that alimony pendente lite should accrue from the date of the application, not the date of the ruling, and that the amount previously ordered was reasonable. The Respondent's financial and medical circumstances were not new matters and could have been presented earlier with due diligence....
Court Disposition
application for review dismissed with costs to the petitioner
Orders
- The Respondent's application for review of the court order of 29th June 2012 is dismissed.
- Costs awarded to the Petitioner.
Full Case Text
Judgment text and source record
22 paragraphs
Z.Y.S.A .......................................................................... PETITIONER
VERSUS
Y.S.A. ......................................................................... RESPONDENT
RULING
1)The Respondent seeks a review of the decision of this court of 29th June 2012 ordering alimony pendete lite at Kshs.100,000/= per month from the date of the application. It is proposed that the maintenance be set at Kshs.30,000/= per month with effect from the date of the ruling rather than the date of the application. The grounds of this application for review are principally that the Respondent’s income has dwindled following his illness with Gall Bladder since 2005.
2)The Petitioner/Applicant opposes the application for review on the ground of lack of good faith on the part of the Respondent pointing out that the Respondent’s financial and medical status were not new matters to justify review and that the Respondent has not paid any alimony as ordered by the court or part thereof as he has proposed in his review application since the order was made, and that the Respondent makes no reference to the Kshs.15,000,000/= deposited in fixed deposit accounts as established by the court in its ruling, save that his savings had been used up in treatment.
3)Two issues arise for determination in this review application, namely: whether the order for payment of alimony pendete lite should be effective the date of the application therefore and whether the amount of alimony should be reviewed to Kshs.30,000/= as suggested by the Respondent or to any other amount.
4)I have considered the application and I find that on first principles the alimony pendete lite, which is a provision for the maintenance of the wife pending determination of matrimonial proceedings, must accrue from the entire period of pendency of the cause so that it should be paid from the date of application to the date of determination of the cause.
It is trite law that an untruthful Applicant disentitles himself from favourable discretion of the court. This is the basis of the principle of full disclosure the breach of which entitles the court to take away any advantage or benefit that the untruthful Applicant may have obtained before the discovery of the breach. See R v. Kensington General Commissioners of Income Tax Ex. P. Edmond de Polignac (1917) 1 K.B. 486. The Respondent who seeks review of the court order of 29th June 2012 in the position of an Applicant, who is required to make full frank disclosure.
5)Save for the suggestion that his savings had been used in medical care, the Respondent has not made any reference to the Kshs.15,000,000/= fixed deposit or of interest accruing thereon, both which are means of the Respondent required to be set out in the affidavit of means in response to all applications for alimony pendete lite, whether filed separately or under the Petition for separation or Divorce. See Rule 44 of the Matrimonial Causes Rules made under the Matrimonial Cases Act. Moreover, the Respondent has not shown any good faith by paying either the monthly amount of alimony pendete lite ordered by the court or his suggested reduced amount since the order was made on 29th June 2012.
6)As I found in my ruling of 29th June 2012, the expenditure claimed by way of alimony pendete lite by the Petitioner is reasonable and I expect that the Petitioner must have had to seek alternative funding for the expenditure, and it must therefore be recoverable from the Respondent with effect from the date of the application.
7)I have noted from the dates of the financial statements and on the Medical Report that the Respondent had the information therein contained and could have produced it before the court with exercise of due diligence. In accordance with the Court of Appeal decision in Touring Cars (K) Ltd v. Mukanji (2001) 1 EA 261, I hold the financial and medical information offered by the Respondent are not new matters which could not have been produced before the court when considering the decision sought to be reviewed.
8)In the circumstances, I dismiss the Respondent’s application for review of the court order of 29th June 2012 with costs to the Petitioner.
EDWARD M. MURIITHI
JUDGE
Dated and delivered this 28th day of September 2012.
F. TUIYOTT
JUDGE
In the presence of:
Mr. Shimaka for the Petitioner
No appearance for the Respondent
Miss Moriasi - Court Clerk