C.M.A.W.M v P.A.W.M [2015] KECA 673 (KLR)
The bottom line
#Kenya's Court of Appeal upheld monthly maintenance for a deserted wife, ruling that hiding your finances in divorce cases works against you.
What this practically means
#Executive summary
#Key legal issues
#Whether adverse inferences may be drawn for non-disclosure of means in matrimonial causes
Yes. Material non-disclosure or lack of candour attracts adverse inferences regardless of the matrimonial nature of the cause; Rule 48 does not outlaw it and English law, which section 3 imports, supports the same principle.
The Court read Rule 48 and found nothing outlawing the drawing of inferences. It stated the established evidentiary rule that a party guilty of material non-disclosure or lack of candour may face adverse inferences. It further noted that section 3 of the Matrimonial Causes Act requires the High Court's matrimonial jurisdiction to be exercised in accordance with English law, under which adverse inferences are equally drawn against a less-than-candid party. Lack of candour is held against such a party with fatal consequences.
Mode of preliminary investigations under Rule 48
Rule 48 is permissive, not mandatory; the court has wide latitude and may dispose of an alimony application on the affidavits on record without calling oral evidence.
A careful reading of Rule 48 shows the judge 'may' order attendance, cross-examination, oral evidence, discovery or further affidavits; no particular mode of preliminary investigation is preferred. Since several affidavits had been filed, the court was sufficiently armed to dispose of the application, and the trial judge's comments on lack of candour demonstrated that investigations in fact took place.
Use of evidence allegedly obtained in violation of the appellant's privacy
The trial court did not err. The constitutional privacy provisions did not apply retrospectively and, even if they did, the right is limited and disclosure of the appellant's affairs was necessary given his lack of candour and failure to file an affidavit of means.
The Court noted the parties remain married until formal dissolution, that the constitutional privacy protections were not retrospective, and that Article 31 privacy as regards family and private affairs is not absolute. Because the appellant had been grossly economical with the truth and withheld the valuation report, the documents supplied prima facie evidence on which the court could properly act.
Compliance with section 25 of the Matrimonial Causes Act
The award of Kshs.127,000/- per month was within the statutory cap, which is pegged on the husband's average net income for the three years preceding the order, not his current monthly income.
Section 25 provides that alimony pending suit shall in no case exceed one-fifth of the husband's average net income for the three years preceding the order. The appellant's admitted monthly income exceeded £3,000, and his claim of reduced income due to European economic meltdown was a bare assertion unsupported by evidence. The award of £1,000 monthly was therefore proper.
Whether a tabulated affidavit of means is a precondition to an alimony award
No. There is no legal requirement that an affidavit of means be intituled as such; sufficient material on a spouse's income and expenditure suffices, and the respondent's various affidavits supplied it.
The Court held that the absence of a document intituled 'Affidavit of means' does not defeat a maintenance claim where the record contains sufficient information about the spouse's needs and expenses. The respondent's various affidavits provided such material, indeed so much that the appellant gleaned information about her possessions from them and used it against her.
Maintenance of a deserted foreign spouse without a work permit
The husband who brought his foreign wife to Kenya and abandoned her must maintain her at the same level as when they cohabited; she cannot be told to return to her motherland.
It was common ground that the respondent was a British citizen resident in Kenya without a work permit, unable to engage in gainful employment, and that the appellant used to pay her £750 monthly for household expenses before desertion. The Court held his abandonment of a foreign spouse is the more reason to call on him to maintain her at the pre-desertion standard, dismissing his suggestion that she return to England as outrageous, offensive and heartless.
Legal principles established
#- A court may draw adverse inferences against a party who fails to make full and frank disclosure of their means in matrimonial proceedings; Rule 48 of the Matrimonial Causes Rules does not prohibit this and it matters not that the cause is matrimonial.
- The preliminary investigations contemplated by Rule 48 of the Matrimonial Causes Rules are permissive, not mandatory, and the court has wide latitude on the mode of investigation.
- An affidavit of means need not be expressly intituled as such; what is required is sufficient information on a spouse's income and expenditure enabling the court to determine maintenance.
- Alimony pending suit under section 25 of the repealed Matrimonial Causes Act is capped at one-fifth of the husband's average net income for the three years preceding the order, not one-fifth of his current monthly net income.
- An appellate court will not interfere with the discretion to grant interim maintenance where it has been exercised judicially and without caprice.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- High Court of Kenya at Malindi
- H.C. Divorce Cause No. 1 of 2013
- Jurisdiction invoked
- First appeal from an interlocutory ruling of the High Court in a matrimonial cause under the repealed Matrimonial Causes Act (appeal as of right on law and fact)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C.M.A.W.M v P.A.W.M [2015] KECA 673 (KLR)", Case Analysis (2015). Civil Appeal No. 2 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/673/eng@2015-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.