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Court of AppealDismissedCivil Appeal No. 256 of 2015· [2019] KECA 610 (KLR)

GMM v FMM [2019] KECA 610 (KLR)

Court of Appeal of Kenya
21 June 2019
RNR.N. NambuyePKP.O. KiageSKS. ole Kantai
2,139 words in judgment
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The bottom line

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A husband who ignores the court's demand to disclose his finances loses the right to complain that his wife's alimony award is too high.

What this practically means

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Executive summary

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The respondent wife filed a divorce petition seeking, inter alia, alimony pending suit via a Chamber Summons. Musyoka, J., by ruling dated 23rd January 2015, ordered the appellant husband to pay monthly maintenance of Kshs.200,000/=, medical expenses capped at Kshs.150,000/= per year, and a one-off Kshs.500,000/= for furniture, pending determination of the divorce cause, with costs in the cause. The husband appealed on seven grounds, contending mainly that the awards were excessive, unsupported by evidence, and contrary to the one-fifth cap on alimony pending suit under section 25 of the Matrimonial Causes Act. The Court of Appeal (Nambuye, Kiage and Kantai, JJ.A.) in a single judgment of the court dismissed the appeal. It held that grounds attacking the Judge's failure to make findings on why the respondent left the matrimonial home were misconceived, since no evidence had been led on an interlocutory application for final findings to be made. Applying its earlier decision in K v K [2008] 1 KLR 75, the Court held that Rule 44 of the Matrimonial Causes Rules obliges a husband to file an affidavit of means within fourteen days, and that a husband who fails to do so cannot complain that the alimony awarded exceeded one fifth of his income; the court fixes quantum on the evidence available, ensuring the sum is fair, reasonable and does not suppress the husband below subsistence level. The uncontroverted deposition that the appellant earned Kshs.800,000/= monthly supported the awards. The Court noted the interim orders had since been vacated by the High Court judgment of 15th June 2016, so the findings may lack practical effect. The appeal was dismissed with costs. This judgment binds lower courts on the affidavit-of-means obligation and the consequence of failing to discharge it.

Key legal issues

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01

Findings on desertion/departure from the matrimonial home on an interlocutory application

Holding

Grounds of appeal complaining of the Judge's failure to find on why the respondent left the matrimonial home were misconceived because no evidence had been led for final findings on an interlocutory Chamber Summons.

Reasoning

The appeal concerned only a Chamber Summons for alimony pending suit, not the main petition. On such an application, the judge could not make definitive findings on contested facts about the departure from the matrimonial home, as no evidence had been led. Those grounds of appeal therefore had no merit and were dismissed.

p. 3
02

Effect of failure to file an affidavit of means under Rule 44

Holding

A husband who fails to file the affidavit of means required by Rule 44 of the Matrimonial Causes Rules cannot challenge the quantum of alimony as excessive or as exceeding the one-fifth cap under section 25 of the Act.

Reasoning

Section 25 of the Matrimonial Causes Act caps alimony pending suit at one fifth of the husband's average net income. Rule 44 requires the husband, within fourteen days, to file an affidavit of full particulars of property and income. Following K v K, the court fixes quantum on the evidence available, ensuring fairness and that the figure does not suppress the husband below subsistence level. The appellant did not controvert the deposition that he earned Kshs.800,000/= monthly, so the awards were not exorbitant.

p. 3

Legal principles established

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  • Rule 44 of the Matrimonial Causes Rules obliges a husband served with a petition claiming alimony pending suit to file within fourteen days an affidavit setting out full particulars of his property and income, and a husband who fails to do so cannot complain that the alimony awarded exceeded one fifth of his income; the court must fix quantum on such evidence as is available, ensuring the sum is fair and reasonable and does not suppress the husband below subsistence level.
  • A trial judge cannot make definitive findings of fact on disputed circumstances (such as why a spouse left the matrimonial home) where only affidavit evidence on an interlocutory application is before the court and no evidence has been led.

Court orders

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  1. 1.The grounds of appeal relating to findings on the respondent's departure from the matrimonial home are dismissed as having no merit
  2. 2.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Matrimonial Causes ActSection 25
  • Matrimonial Causes RulesRule 44

Cases cited (1)

  • K v K
    [2008] 1 KLR 75
On appeal from
High Court of Kenya at Nairobi
Divorce Case No. 47 of 2013
Jurisdiction invoked
First appellate jurisdiction over the High Court ruling in Divorce Case No. 47 of 2013 (Matrimonial Causes Act appeals)

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, "GMM v FMM [2019] KECA 610 (KLR)", Case Analysis (2019). Civil Appeal No. 256 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/610/eng@2019-06-21

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