MEK v GLM (Civil Appeal 66 of 2015) [2018] KECA 543 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed husbands can seek spousal maintenance, but set aside this award because neither spouse filed affidavits of means.
What this practically means
#Executive summary
#Key legal issues
#Equal right of either spouse to maintenance
Article 45(3) of the Constitution read into s 25(2) of the repealed Matrimonial Causes Act gives both spouses an equal right to apply for maintenance, consistent with s 77 of the Marriage Act, 2014.
The petition predated the 2010 Constitution, but s 7 of the Sixth Schedule requires pre-existing law to be construed with alterations necessary to conform to the Constitution. Article 45(3) guarantees equal rights during marriage and at dissolution, so the husband's right to maintenance is no longer limited to cases of insanity under s 31(2) of the repealed Act. This is consistent with the gender-neutral 'person' in s 77(1) of the 2014 Act.
Evidential basis for a maintenance order
A maintenance order made without affidavits of means from both parties cannot stand; the quantum of Kshs.20,000/= per month was arbitrary.
Rule 44 of the Matrimonial Causes Rules obliged both parties, who each sought alimony, to file affidavits of means. Neither did. The trial judge had no concrete evidence of the appellant's income or the respondent's impecuniosity, and unemployment does not necessarily mean a person is impecunious. The discretion was therefore exercised on guesswork.
Desertion, delay and conduct in maintenance applications
On the facts the respondent was not deserving of maintenance: the parties had lived apart for 18 years, he had maintained himself, and he sought maintenance as a windfall.
The respondent left the matrimonial home in 1996 and never sought maintenance until the divorce decree. He provided no evidence of special hardship, and his motive was a sense of entitlement to a share in the appellant's career progression. It would be against public policy to grant a man maintenance merely because the woman has proved more industrious.
Relevance of the traditional gender role factor
Okwengu, JA regarded the justification for reversal of the traditional gender role expectation as a relevant factor; Githinji, JA dissented, holding it constitutionally infirm and superseded.
Okwengu, JA reasoned that equality in marriage is not applied blindly and that in a husband's application the court may consider justification for reversing the traditional expectation that a man provides for his family. Githinji, JA held this factor has no statutory underpinning, derives from outdated English notions, and would derogate from the gender equality guaranteed by Articles 45(3) and 27(1), the primary consideration being the financial affairs of the spouses.
Attempted introduction of new evidence on appeal
Evidence of the appellant's income and the respondent's expenses tendered for the first time on appeal could not be used, as it was never availed to the trial judge.
The respondent sought to introduce a breakdown of his expenses and evidence of the appellant's possible income at the hearing of the appeal. The court declined to rely on it because it was not before the trial court, whose decision was under review. The allegation of cohabitation with another woman was also unsupported by evidence and had been rejected below as based on suspicion and rumour.
Legal principles established
#- Article 45(3) of the Constitution entitles either spouse, including a husband, to apply for maintenance from the other at the dissolution of marriage, and section 77(1) of the Marriage Act, 2014 is gender-neutral to the same effect.
- An order for maintenance cannot be judicially made without affidavits of means disclosing the property and income of both parties; an award made without such disclosure is arbitrary guesswork.
- Maintenance is a discretionary order, not a right or entitlement, dependent on the circumstances of each case and the evidence presented.
- Repealed maintenance provisions (including s 25(2) of the Matrimonial Causes Act) continue to apply to proceedings commenced before repeal by virtue of s 23(3)(b) of the Interpretation and General Provisions Act, read with the transitional provisions of the Constitution.
Court orders
#- 1.Appeal allowed
- 2.The order of the High Court granting the respondent maintenance against the appellant is set aside
- 3.The prayer for enhancement of the maintenance is dismissed
- 4.Each party to bear their own costs of the appeal
- On appeal from
- High Court of Kenya
- Divorce Cause No. 1 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the applicable appellate statutory framework (the judgment does not expressly invoke a specific constitutional or statutory appellate provision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JKO v CKO (Civil Appeal 560 of 2019) [2023] KECA 115 (KLR)[2023] KECA 115 (KLR)3 Feb 2023
- JOO v MBO & 2 others[2023] KESC 4 (KLR)27 Jan 2023
- HDG v EWW (Matrimonial Cause E15 of 2022) [2022] KEKC 162 (KLR)[2022] KEKC 162 (KLR)13 Dec 2022applied
- ENK v MNNN (Civil Appeal 559 of 2019) [2021] KECA 219 (KLR)[2021] KECA 219 (KLR)3 Dec 2021followed
- MNH v FHM[2018] KEHC 1183 (KLR)20 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "MEK v GLM (Civil Appeal 66 of 2015) [2018] KECA 543 (KLR)", Case Analysis (2018). Civil Appeal (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/543/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.