H W G v E M G
The bottom line
#Kenya's Court of Appeal ruled that a husband who expels his wife from their matrimonial home must pay her monthly maintenance while the case is pending.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to interim maintenance where the wife has been expelled from the matrimonial home
The High Court erred in dismissing the application; interim maintenance of Shs.20,000 per month was awarded to the wife with effect from 1st January 1999.
The wife earned only Shs.16,000 per month, insufficient to support herself and the children. The husband admitted earning Shs.50,000 per month and offered alternative accommodation translating to about Shs.20,000 monthly rental. Having expelled the wife, the husband was obliged to maintain her pending trial, though she could not expect her former standard of material enjoyment.
Right to remain in the matrimonial home and condemnation of domestic violence
The husband had no right to turn the wife out of the matrimonial home by brute means or otherwise; the Court condemned domestic violence against a spouse.
The husband and wife are joint proprietors of the matrimonial home. The wife was thrown out in March 1998 and barred from the rural family home. The Court stated it would promptly punish the erring party, though it made no firm pronouncement on the unresolved pleadings pending trial in the superior court.
Husband's non-compliance with rule 44 of the Matrimonial Causes Rules
The husband had not filed an affidavit setting out full particulars of his property and income as required, making exact assessment impossible.
The wife's application contained only a general statement of the husband's income and property. In contravention of rule 44 of the Matrimonial Causes Rules the husband filed no affidavit of particulars. The Court therefore proceeded on his admitted earnings of Shs.50,000 per month and the rental value of the accommodation offered.
Legal principles established
#- A spouse has no right to expel the other spouse from the matrimonial home by force or otherwise, and courts will condemn and punish domestic violence against a spouse.
- A husband who expels the wife from the matrimonial home must maintain her pending the determination of the matrimonial cause, even where her own income is insufficient.
- Where a consent order relieves a wife of the duty to cohabit and she has been expelled from the matrimonial home, the court should award interim maintenance; failure to do so is an error of law.
Court orders
#- 1.Appeal allowed
- 2.Ruling and order of the learned Judge set aside
- 3.Substituted order awarding the wife Shs.20,000.00 per month interim maintenance with effect from 1st January, 1999
- 4.No order for release of the motor vehicle to the wife
- 5.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Separation Cause No. 68 of 1998
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Court of Appeal's appellate jurisdiction (judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "H W G v E M G", Case Analysis (1999). Civil Appeal No. 246 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/126/eng@1999-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.