J.B.M v B.N.B [2013] KECA 404 (KLR)
The bottom line
#Kenya's Court of Appeal cut a husband's temporary alimony from Kshs.250,000 to Kshs.100,000 monthly, ruling courts must base maintenance on evidence of both spouses' means—not just perceived wealth.
What this practically means
#Executive summary
#Key legal issues
#Basis for assessing alimony pendente lite
An award of alimony pendente lite must not be arbitrary; it must be grounded in evidence of the parties' means, ideally through affidavits of means, and the mere assertion that a husband is 'very wealthy' is not a proper yardstick.
The Court found that the trial Judge awarded Kshs.250,000/= simply because the appellant was said to be 'very wealthy', without assigning reasons, without considering the appellant's other responsibilities (a second customary wife, five children, foreign school fees and bank indebtedness), and without considering the respondent's alleged income. The Court held that apparent wealth may be eroded by obligations such as fees and mortgages, so an informed assessment requires evidence of actual income from both parties.
Effect of the proviso to Section 25(1) of the Matrimonial Causes Act
The proviso capping alimony pending suit at one-fifth of the husband's average net income for three preceding years can only be applied where there is proper evidence of that income, ordinarily by affidavit of means; absent such evidence the cap could not be computed but the award still had to rest on a reasoned evidential basis.
The Court agreed that the provisions of Section 25(1) could not apply because no proper affidavit of means was filed to enable calculation of one-fifth of the appellant's income. Nevertheless, the absence of a computable cap did not license an arbitrary figure; the trial court should have ordered affidavits of means from both parties to reach an informed conclusion, even though the award was only temporary.
Wife's obligation to maintain children of the marriage
Under Article 53(1)(e) of the Constitution of Kenya, 2010, a wife is also obligated to provide care and protection to a child of the marriage and cannot heap that burden entirely on the husband; the wife's earning capacity is therefore relevant to maintenance.
Although the Constitution came into effect after the suit was filed, the Court found it of profound bearing. Relying on Lionel Rosen's 'Matrimonial Offences' and Lord Merrivale in Church v Church, the Court held that an assessing court must consider the earning capacity of the wife alongside the husband's actual earnings and capacity to earn. The trial Judge erred in failing to direct her mind to the respondent's alleged earnings from her plot, businesses and constitutional review delegate work.
Award where validity of marriage is disputed
The Court did not uphold the appellant's contention that no alimony could be awarded while the validity of the marriage was in question; it proceeded on the basis that the respondent was in law still the wife of the appellant pending determination of the divorce cause.
The main issue was framed as the amount of alimony pendente lite payable to the respondent 'who is in law still the wife of the appellant pending the determination of Divorce Cause No.2 of 2007'. Although the appellant denied the statutory marriage and alleged a prior customary marriage to another woman, the Court did not treat the disputed validity as a bar to a temporary maintenance award, exercising its first appellate discretion to substitute Kshs.100,000/= per month.
Legal principles established
#- Apparent wealth is not a valid yardstick for an award of alimony pendente lite; the court must consider evidence of actual means, including the wife's income and the husband's other responsibilities
- An order for alimony pendente lite should be founded on an affidavit of means, without which the proviso to Section 25(1) of the Matrimonial Causes Act cannot be applied
- In assessing maintenance, even on a temporary basis, the wife's income cannot be ignored, and both spouses bear an obligation to provide care and protection to children of the marriage under Article 53(1)(e) of the Constitution
Court orders
#- 1.Appeal allowed
- 2.The High Court award of Kshs.250,000/= per month set aside
- 3.In its place, the appellant to pay the respondent Kshs.100,000/= per month until Divorce Cause No. 2 of 2007 is heard and determined
- 4.Each party to meet its own costs
- On appeal from
- High Court of Kenya at Embu
- H.C. Divorce Case No. 2 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Court of Appeal's statutory appellate powers; the judgment also refers to an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J.B.M v B.N.B [2013] KECA 404 (KLR)", Case Analysis (2013). Civil Appeal 232 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/404/eng@2013-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.