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KadhiPartially AllowedNot stated in judgment· [2016] KEKC 23 (KLR)

MAL v AMC (Civil Case 283 of 2012) [2016] KEKC 23 (KLR)

Kadhis' Court
5 May 2016
AAABDULHALIM H. ATHMAN
637 words in judgment
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The bottom line

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A Mombasa Kadhis' Court refused to attach a father's nil salary for child maintenance but ordered him to pay the arrears and keep paying monthly support.

What this practically means

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Executive summary

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This was a notice to show cause, filed under certificate of urgency by the plaintiff, seeking attachment of one-third of the defendant's salary for maintenance of the minor child RML. Earlier, the defendant had been ordered to pay child maintenance of KES 9,000.00 per month for two children, payable in weekly installments, plus education costs, 25% of the matrimonial house as mut'a, and the plaintiff was to give up vacant possession of 75% of that house. The plaintiff alleged arrears of KES 25,500.00 for January to March 2016, failure to fund lunch and school fare, and failure to renovate the house or pay mut'a, noting the house burnt down and one child died. The defendant, through a replying affidavit with pay slips and receipts, stated he had received nil salary since November 2015 due to imprest recovery issues, sought a downward review, and relied on his record of regular payments. The court found he had paid school fees up to April 2016 and discharged him of contempt in that regard, but found he owed KES 34,000.00 as at April 30, 2016. Holding that attachment has merit only absent willingness to comply, and that a nil net salary cannot be attached, the court rejected the attachment, ordered settlement of the balance and continued monthly maintenance, retained the maintenance rate to cover accommodation, and declared the mut'a issue overtaken by events.

Key legal issues

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01

Whether to attach 1/3 of the defendant's salary for child maintenance

Holding

Attachment refused; defendant demonstrated willingness to comply and his net salary reads nil

Reasoning

The court found the defendant had been making regular payments towards the decree despite receiving nil salary since at least January 2016 due to imprest recovery issues with his employer. Attachment, the court reasoned, would have merit only where the defendant failed to demonstrate willingness to comply, and it is impossible to attach a salary that reads nil. The balance of KES 34,000.00 was ordered settled.

p. 2
02

Whether the defendant was in contempt of the maintenance decree

Holding

Discharged of contempt as to school fees, but held liable for the maintenance balance of KES 34,000.00

Reasoning

The court examined the receipts and pay slips annexed to the replying affidavit. The defendant had attached proof of payment of school fees up to April 2016, with no contrary proof, so he was discharged of contempt in that regard. However, only one receipt of KES 2,000.00 since January 2016 was shown, leaving an outstanding balance of KES 34,000.00 as at April 30, 2016, which he was ordered to settle.

p. 2
03

Whether the monthly maintenance of KES 9,000.00 should be reviewed downwards

Holding

Rate retained, to be inclusive of accommodation of the child

Reasoning

One of the two children had passed away, which would ordinarily justify a downward review. However, the matrimonial house had burnt down, leaving the plaintiff and the child without accommodation. The court therefore retained the current rate, directing that it be inclusive of the child's accommodation, and held the mut'a compensation issue overtaken by events given the destruction of the house.

p. 2

Legal principles established

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  • Salary attachment in lieu of maintenance requires a demonstrated unwillingness to comply, and cannot issue where the net salary reads nil
  • A defendant who shows regular payment despite challenges is discharged of contempt, but remains liable for the balance outstanding

Court orders

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  1. 1.The prayer for attachment of the defendant's salary is rejected
  2. 2.The defendant shall settle the balance of KES 34,000.00
  3. 3.The defendant shall continue to pay the monthly child maintenance as earlier ordered
  4. 4.The defendant is discharged of any contempt in respect of payment of school fees
  5. 5.The current rate of maintenance is retained to be inclusive of accommodation of the child
  6. 6.The issue of mut'a compensation is overtaken by events following destruction of the matrimonial house by fire
Jurisdiction invoked
Jurisdiction under the Kadhis' Courts Act in matrimonial/maintenance matter (not expressly cited in judgment)

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, "MAL v AMC (Civil Case 283 of 2012) [2016] KEKC 23 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2016/23/eng@2016-05-05

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