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Court of AppealPartially AllowedCivil Appeal No. 166 of 2015· [2017] KECA 453 (KLR)

P K M v R P M [2017] KECA 453 (KLR)

Court of Appeal of Kenya
30 June 2017
HOH. M. OkwenguDMD. K. MusingaSKS. Gatembu Kairu
6,856 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a Kshs. 90 million maintenance award, ruling courts must demand full financial disclosure from both spouses before fixing support.

What this practically means

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Executive summary

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The Court of Appeal (Okwengu, Musinga and Gatembu Kairu, JJA) allowed in part an appeal by a former husband against maintenance orders made by Kimaru, J in a divorce cause, in which the High Court had ordered a lump sum of Kshs. 30 million (representing Kshs. 250,000 monthly for ten years) and, in addition, provision of a house in an upmarket Nairobi area or Kshs. 60 million in default. Neither party challenged the dissolution of the marriage. The appellant argued the trial judge misdirected himself on the parties' financial means, wrongly shifted the burden of proof, ignored the respondent's earning capacity and her abandonment of employment, and made a duplicative and excessive award. The Court held that maintenance under Section 25(2) of the repealed Matrimonial Causes Act is discretionary and must be exercised judiciously on full and frank disclosure by both spouses; neither party filed affidavits of means. While the trial judge was entitled to draw an adverse inference from the appellant's lack of candour, his finding of an elaborate asset-transfer scheme was unsupported by evidence. The judge's conclusion that the 54-year-old respondent had lost her earning capacity, without evidence of efforts to secure work, was a misdirection, as was the apparent failure to consider the consent order on the children's education. The house/Kshs. 60 million order duplicated relief already covered by the lump sum and was set aside. The lump sum mode was upheld, but the quantum was set aside and the matter remitted to a judge other than Kimaru, J with directions that both parties file comprehensive affidavits of means within 30 days, followed by a hearing. The interim maintenance of Kshs. 150,000 monthly continues pending redetermination. Each party bears its own costs of the appeal.

Key legal issues

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01

Duty of full financial disclosure in maintenance proceedings

Holding

Both spouses must file affidavits of means under Rule 44 of the Matrimonial Causes Rules; the proceedings have a substantial inquisitorial element and the court must proactively examine the financial circumstances of both parties

Reasoning

Neither party filed an affidavit of means and the court did not demand the information needed for an informed decision. The court invokes Rule 48's powers of investigation and discovery and Lord Sumption's admonition on candour in Prest v Petrodel to hold that an informed maintenance award requires full, frank and up-to-date disclosure supported by evidence, with cross-examination where information is contested.

p. 7
02

A capable spouse's duty of self-support

Holding

A spouse capable of earning cannot evade responsibility to support herself; the trial judge's finding that the respondent lost her earning capacity at 54 without evidence of effort to secure work was a misdirection

Reasoning

The respondent had worked as a consultant earning USD 3,500 monthly until 2010 but gave no evidence of efforts to find work or establish a design practice. The judge's own test required evidence of efforts to secure a livelihood, yet he found she had lost earning capacity without any evidential basis, adversely affecting the exercise of discretion.

p. 9
03

Adverse inference for non-disclosure

Holding

An adverse inference may properly be drawn against a spouse who fails in his duty of candour, but the trial court cannot go further and find an elaborate asset-dissipation scheme without evidence

Reasoning

Given the litigation history over enforcement of interim maintenance, the trial judge was entitled to infer the appellant was a person of substantial means who concealed his income. However, the finding that he incorporated companies and transferred properties to nominees on commencement of the divorce was not based on evidence and could not stand.

p. 9
04

Duplication of relief

Holding

The order for a house or Kshs. 60 million in lieu duplicated the lump sum maintenance which presumably covered accommodation, and had to be set aside

Reasoning

The Kshs. 30 million lump sum (based on Kshs. 250,000 monthly, including rent) already addressed accommodation; ordering the appellant to also provide a house would amount to paying rent in addition to a house, which the court was not persuaded he intended. The house order could not stand.

p. 10
05

Lump sum mode of payment

Holding

The order that maintenance be paid as a lump sum cannot be faulted where the appellant himself proposed it and there were special circumstances of difficulty in enforcing monthly payments

Reasoning

The appellant indicated he wished to pay a lump sum; the judge took into account the difficulties the respondent had experienced in receiving interim monthly maintenance. Estoppel and special prevailing circumstances justified the lump sum mode, so that part of the appeal failed.

p. 10

Legal principles established

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  • A spouse capable of earning must contribute to their own support; maintenance is discretionary and must be based on evidence of both parties' financial circumstances
  • Courts must require affidavits of means from both parties in maintenance applications, with cross-examination where contested, and liberty to apply for variation
  • The Court of Appeal will not interfere with a trial court's exercise of discretion unless the decision is clearly wrong for identified reasons

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders for payment of maintenance of Kshs. 30 million and for purchase of a house or payment of Kshs. 60 million in lieu set aside
  3. 3.Matter remitted to the High Court before a judge other than Kimaru, J
  4. 4.Parties to file, within 30 days, comprehensive affidavits of means (assets, income, expenditure and liabilities) supported by necessary evidence
  5. 5.High Court to accord the parties a hearing before pronouncing itself on maintenance
  6. 6.Pending determination, the interim maintenance order of Kshs. 150,000 per month continues in force
  7. 7.Each party to bear its costs of the appeal; costs of the High Court proceedings to be determined by the High Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 45(3)
  • Constitution of Kenya, 2010Article 45(1) (referred to as Article 45)
  • Constitution of Kenya, 2010Articles 27(4), 27(5)
  • Constitution of Kenya, 2010Section 7(1), Sixth Schedule
  • Marriage Act, 2014Section 3(2)
  • Matrimonial Causes Act (repealed), Cap 152Section 25(2)
  • Matrimonial Causes RulesRules 44, 44(2), 48
  • Evidence ActSection 107

Cases cited (9)

  • W.M.M vs. B.M.L
    [2012] eKLR
  • P.M.A vs. E.G.M.L
    [2016] eKLR
  • S.M.R vs. P.H.S
    [2013] eKLR
  • Dr. Pradeep Kurmar Sharma vs. Ratna Sharma
    CM (M) 50/2007 and CM 15892/2008
  • Sharpe vs. Sharpe
    366 P.3d 66 (Alaska 2016)
  • S.N.K vs. M.S.K & 5 others
    [2015] eKLR
  • Prest vs. Petrodel Resources Limited and others
    [2013] UKSC 34
  • Mbogo and Another vs. Shah
    [1968] EA 93
  • P.M.A.V vs. G.M.L
    [2016] eKLR
On appeal from
High Court of Kenya at Nairobi
Divorce Cause No. 154 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal against the exercise of discretion by the High Court in a divorce cause (maintenance orders)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "P K M v R P M [2017] KECA 453 (KLR)", Case Analysis (2017). Civil Appeal No. 166 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/453/eng@2017-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.