Changing times, changing laws

Maintenance is not an entitlement or right but a discretionary order

0
57
From left: Court of Appeal Judges William Ouko, GBM Kariuki, Patrick Kiage and James Odek giving their ruling on January 29, 2016 where they dismissed preliminary objection by Judiciary Service Commission against Deputy Chief Justice Kalpana Rawal challenging her retirement. Photo | Jeff Angote | Nairobi
Advertisement

By Kennedy Lumwamu

In yet another first in Family Law, the Court of Appeal in divorce cause No. 1 of 2000, has provided direction on how to handle marital matters.

The Court has rescinded a decision by the High Court which had awarded maintenance costs to a man after he parted ways with his wife in a running divorce case going back to three years ago.

It allowed a petition in which the woman had contested a decision by the High Court to have her pay her former husband Sh20,000 maintenance costs per month for the rest of his life.

Judges Hannah Okwengu, J. Mohammed and E.M. Githinji set aside the award given by High Court Judge George Kanyi Kimondo and also dismissed a plea by the man to have it enhanced to Sh50,000 per month.

While delivering the judgment in Eldoret in June 2018, the judges said that the Court did not have sufficient information upon which it could make an informed decision regarding the financial ability of the former wife.

The man, a pensioner, had told the High Court that they had lived apart for 18 years and Justice Kimondo ordered that he be maintained with effect from February 30, 2015.

He said that his financial position was evident as he could not even afford a lawyer. He said he is an economist specialised in the oil industry and the last time he had a salary was in 1991.

He said in 2013 he was appointed executive director of a company with a Sh20,000 monthly pay but the appointment lasted for only two years.

However, through her lawyer, the woman who is a lecturer in South Africa told the court that the man had not proved that he needed the maintenance.

She said the former husband had not proved that she had the means and capacity to maintain him and that the judge had not made proper findings whether the man had remarried or not.

The mad had said that he supported her as she upgraded her education before she left him.

Justice Okwengu said the Court was obliged to consider whether there was sufficient evidence before the trial judge to consider if the applicant was not a man of means to maintain himself, and whether he had another wife.

The judges said the pair had an obligation to file an affidavit of means setting out full particulars of their properties and income as both had sought alimony.

The judges said that the man had conceded that his former wife was the sole provider when they lived together at the woman’s work place at the university but had not shown any efforts he made to alleviate the burden from her.

As such, the court noted, the said maintenance was neither a right nor entitlement but a discretionary order.

The Court stated it would be wrong for the man to treat the divorce as a windfall to improve his standards of living. Consequently, the judges set aside the award of Sh20,000 and rejected the prayer for enhancement.

The Court had initially stayed orders requiring the woman to pay him Sh20,000 per month until the appeal she was heard and determined.

Justice Kimondo had dismissed the application for stay compelling the woman to seek redress in the court of Appeal. Judges D.K. Maraga, D.K. Musinga and S. Gatembu Kairu of the Court of Appeal while ruling on the matter, had said that the appeal in which the woman wanted the High Court order requiring her to maintain her estranged husband was arguable.

The Court of Appeal judges agreed with the woman’s lawyer, Alubala Andambi, that from the material on record, the man by his own admission said he was not a man of means.

The judges noted that Andambi had also indicated to them that if the appeal stopping the monthly payments succeeds, he would be unable to refund the maintenance sums that would have been paid to him.

They said that in such an event, the appeal would have been rendered nugatory.

They added that the woman said that she had to borrow money from a bank to satisfy the decree issued by the High Court and stood to lose that money if the appeal is successful.

Mr Andambi had faulted the Judge for ordering the woman to   maintain her husband even when he had been maintaining himself for over 18 years and had not shown that his life had drastically changed.

He also said that Mr Majanja had not placed any evidence to show that his former wife had financial means and capacity to maintain him. He asked how he arrived at the figure of Sh20,000 per month without any proof of her earnings. (

LEAVE A REPLY

Please enter your comment!
Please enter your name here