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Court of AppealPartially AllowedCivil Appeal No. 45 of 2016· [2017] KECA 585 (KLR)

N B R v J O [2017] KECA 585 (KLR)

Court of Appeal of Kenya
10 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'Inoti
3,024 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a Kshs 100,000 monthly alimony order, ruling a spouse who can work must try to support themselves.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Makhandia, Ouko and M'Inoti, JJ.A) allowed an appeal by the husband, N B R, against a ruling of Odero J. in the High Court at Mombasa which, in a divorce cause, awarded the respondent wife alimony pendente lite of Kshs 100,000 per month in addition to Kshs 175,000 per month already payable under a Children's Court order. The appellant argued that the judge exercised her discretion erroneously by failing to consider relevant factors, notably that he had made two separate payments of Kshs 6 million each - one deposited for the child and one paid to the respondent under a nuptial agreement - which the judge conflated into one. The Court restated the principle that an appellate court interferes with a trial court's exercise of discretion only where the trial court misdirected itself, considered irrelevant matters, or failed to consider relevant ones, and thereby reached a wrong decision. It held the trial judge had failed to consider the lump sum payment, the reality of two separate households after separation, and the constitutional principle that a spouse capable of earning must make efforts to maintain herself. The Court also noted the transitional position following the repeal of the Matrimonial Causes Act by the Marriage Act, 2014, under which maintenance is a right of any spouse. The appeal was allowed: the Kshs 100,000 monthly award was set aside, the Children's Court order of Kshs 175,000 per month stands, the appellant was directed to list the divorce cause for hearing within 60 days, and each party was ordered to bear their own costs.

Key legal issues

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01

Interference with the trial court's discretion on alimony pendente lite

Holding

The learned judge failed to consider relevant factors, notably the lump sum payment of Kshs 6 million made to the respondent and the existence of two separate households, justifying appellate interference

Reasoning

The discretion in awarding alimony belongs to the trial court, and the appellate court interferes only with great circumspection. Here the judge conflated the two Kshs 6 million payments, considering only the deposit for the child, and failed to account for the lump sum paid to the respondent months before the application and the reality of two separate households. Those failures constituted misdirection warranting interference.

p. 4
02

Equality of spouses in maintenance under Article 45(3) and section 77 of the Marriage Act, 2014

Holding

The trial court correctly stated the equality principle but failed to apply it; a spouse claiming inability to maintain herself must show effort to secure employment

Reasoning

Article 45(3) confers equal rights and obligations on parties to a marriage, and under section 77 of the Marriage Act, 2014, the right to maintenance belongs to a 'spouse', not only the wife. The judge articulated the principle but erred in application: it was not enough for the respondent to claim she was unskilled and unemployed without evidence of any effort to secure employment or contribute to her own welfare.

p. 5
03

Transitional law: repealed Matrimonial Causes Act versus the Marriage Act, 2014

Holding

The dispute should have been determined, as far as practicable, under the Marriage Act, 2014, which had come into force, though nothing turned on the point

Reasoning

The Matrimonial Causes Act was repealed by section 97 of the Marriage Act, No. 4 of 2014, which came into operation on 20th May 2014. Section 98(2) required proceedings commenced under the repealed Act to continue under the new Act. The new Act confers the right to maintenance on a 'spouse' rather than only the wife, reflecting constitutional equality. The court noted this but held nothing much turned on it since the trial judge had based her determination on the Marriage Act and Article 45(3).

p. 4

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a trial court unless the trial court misdirected itself, considered matters it should not have, or failed to consider matters it should have, and thereby came to a wrong decision
  • In determining an application for maintenance under section 77 of the Marriage Act, 2014, due regard must be had to Article 45(3) of the Constitution and the equality of spouses; a spouse capable of earning cannot be maintained by the other without making efforts to be gainfully employed
  • After separation, there are two separate households to be maintained, and neither party can demand the standard of living enjoyed when the parties lived as one household
  • Proceedings commenced under a repealed statute continue, as far as practicable, under the new Act by virtue of transitional provisions

Court orders

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  1. 1.Appeal allowed
  2. 2.Order for payment of alimony pendente lite of Kshs 100,000 per month set aside
  3. 3.Appellant to continue paying the respondent Kshs 175,000 per month as ordered by the Children's Court
  4. 4.Appellant, who filed the divorce cause, to list it for hearing and determination without further delay and in any case within 60 days of the judgment
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Marriage Act (repealed), cap. 150
  • Matrimonial Causes Act (repealed)section 6; section 25(1); Part VI; section 97 (repeal by Marriage Act)
  • Marriage Act, No. 4 of 2014section 2; section 77; section 97; section 98(2)
  • Constitution of Kenya, 2010Article 45(3); Article 53(1)(e)

Cases cited (6)

  • Rose Detho v. Ratilal Automobiles & Others
    CA. No. 304 of 2006
  • Sharp v. Wakefild
    [1891] AC.173
  • Jaribu Holdings v. Kenya Commercial Bank Ltd
    CA. No. 314 of 2007
  • United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd
    [1985] E.A 898
  • JBM v. BNB
    CA No. 232 of 2008
  • WMM v BML
    HCDC No. 179 of 2009
On appeal from
High Court at Mombasa
HCDC No. 25 of 2014
Jurisdiction invoked
First appeal against the exercise of discretion of the High Court under the Court of Appeal's appellate jurisdiction (Court of Appeal Act); appeal against a ruling on alimony pendente lite

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, "N B R v J O [2017] KECA 585 (KLR)", Case Analysis (2017). Civil Appeal No. 45 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/585/eng@2017-03-10

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