AWN v DKM

6. The appellant’s written submissions are not easy to follow, but the essence of the submissions is that it was the respondent who sought the divorce because he was not comfortable with the appellant due to her disability; the respondent used the matrimonial or appellant’s home to cater for his child with a lover; the appeal did not raise any new evidence or matters not placed before the superior court; the Respondent had indicated in 2003 his inability to stay with the Appellant; the Respondent had assaulted the appellant in 1999 and attempted to kick his son out of the home and that the appeal was led on time. 7. During oral highlights, the appellant informed the Court that she was seeking compensation and damages because of the suering she had undergone after the respondent came into her life and made her lose her job in the civil service and that she was not challenging the superior court's decision to grant her divorce. 8. Ms. Atieno, for the respondent, submitted that the Appellant never raised the issue of the marriage between her and the Respondent having arisen out of a sexual oence and an unmentioned illness before the superior court. According to counsel, the appellant was purporting to introduce new evidence of a crime having been committed by the Respondent against her at the appellate stage without following the prescribed legal route set out by Rule 29(1) & (2) of the Court of Appeal Rules, 2010 (now Rule 31 of the Court of Appeal Rules, 2022). 9. In this respect, counsel cited Mzee Wanje & 93 Ors v A.K. Saikwa & Ors (1982 – 88) 1 KAR 462, wherein the Court held: additional evidence should not be admitted to enable a plainti to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly, and great caution should be exercised in admitting new evidence.’’ 10. Counsel urged the Court to reject the attempt to introduce new evidence. 11. In the oral highlights, counsel submitted that the appellant had not led a Cross-Petition before the superior court to advance any prayers, including compensation. 12. On the third ground of appeal that the superior court's determination was based on a single event in 2003, the Respondent, again, urged that this was not substantiated because such an event was not placed before the superior court. 13. In sum, the respondent urged the Court to dismiss the appeal for being frivolous and without merit. In this regard, it was submitted that while the judgment was delivered on 17th October 2019, the Notice of Appeal was led on 12 November 2019, outside the 14 days prescribed by Rule 75(2) of the then applicable Rules. 14. Further, it was contended that the Memorandum of Appeal and Record of Appeal were lodged with the Court outside the timelines set out in Rules 82 and 84 of the applicable Rules. No leave as required by Rule 4 was sought or obtained. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1787/eng@2026-09-25 2

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15. To buttress the submission, the Respondent relied on a passage from Patrick Kiruja Kithinji v Victor Mugira Marete (2015) eKLR that: whether an appeal is led on time goes to the jurisdiction of this court. It is trite that this Court has jurisdiction to entertain appeals led within the requisite time and/or appeals led out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. Consequently, we nd that an appeal led out of time is not curable under Article 159 of the Constitution.’’ 16. We have considered the record of proceedings before the superior court and parties’ submissions. 17. This is a rst appeal. 18. The role of the Court on a rst appeal was well set out in Selle & Ar v Associated Motor Boat Co. Ltd & Ors (1968) EA 123: This Court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears, either, that, he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.’’ 19. It is incumbent upon this Court to look at the pleadings and evidence tendered before the superior court as it exercises its rst appellate jurisdiction. 20. The appellant did not le a copy of the pleadings, that is, the Petition and the reply to the petition, before the superior court with the Record of Appeal. The respondent had the opportunity to le a Supplementary Record of Appeal. He did not. 21. However, from the superior court judgment, it is clear that the proceedings before the Superior Court revolved around the question of whether the respondent’s Petition for divorce should be allowed or not, and whether the appellant was entitled to compensation for all the years that she made his life (respondent’s) comfortable serving him for no pay; that she be compensated for the time wasted and, that the petitioner provides for their son (name redacted by this Court). 22. During her testimony before the superior court, the appellant testied that she had no objection to the grant of divorce, and she also testied that the respondent had raped her, but she did not report to the Police. 23. Nevertheless, the superior court found that the appellant had admitted deserting the respondent for over 7 years, and eorts at reconciliation had failed. 24. The superior Court allowed the Petition on the ground of desertion. 25. Before this Court, the appellant has not challenged the order granting the divorce, and the thrust of her submissions did not give the impression that she wanted this Court to overturn the decision of the superior court to grant the order for divorce. 26. On the question of compensation, the superior court rendered itself: Regarding the claim that the petitioner had wasted time for the respondent and that she had served the petitioner, it is all about nature. When two adults decide to marry, they are https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1787/eng@2026-09-25 3

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deemed to have chosen the route of serving one another. Nobody wastes time for the other nor serves the other more than necessary. If marriage is a waste of time, then each wasted time for one another hence none should demand compensation for the time they stayed together.’’ 27. The Court has already noted that the appellant did not include her reply to the Petition for divorce in the Record of Appeal. The respondent submitted that there was no Cross- Petition seeking compensation. The appellant did not respond to that submission in her reply to the respondent’s submissions during the plenary hearing of the appeal. The law is that parties are bound by their pleadings (see Raila Amolo Odinga & Ar v IEBC & 2 Ors (2017) eKLR. 28. There is no material before this Court that the Appellant pleaded a case for the award of compensation before the superior court. That course of action could only have been through a Cross-Petition. It, therefore, does not matter that the superior court delved into the issue. At most, that can only be an obiter dictum. It is also doubtful whether a claim for compensation would have been legally sound in divorce proceedings as were before the superior court. Similarly, the grounds of appeal herein do not demonstrate a claim for an award of compensation by this Court. 29. It was up to the appellant to convince this Court that the superior court erred either in law or fact by declining or dismissing her compensation claim. The appellant failed in that endeavour, and the Court nds no merit in the contention. 30. The respondent challenged the competence of the appeal before us. We have reviewed the record. The judgment appealed against was delivered on 17th October 2020. The Appellant led a Notice of Appeal on 12th November 2019. This was outside the 14 days prescribed by Rule 75(2) of the then Court of Appeal Rules, 2010. 31. There is nothing on record to show that leave was granted or extended, either by the superior court or by this Court, to le and serve the Notice of Appeal out of time. 32. The respondent did not move the Court to strike out the appeal because it was led outside the set timelines, and the Court nds this objection not determinative of the appeal. 33. Further, the appellant collected certied copies of proceedings on 26 February 2020. The Registrar of the Superior Court issued a Certicate of Delay on 4th March 2020. 34. The appellant led the Record of Appeal on 14th July 2020, and in terms of rule 82 of the Court of Appeal Rules, 2010, the appellant should have led the Record of Appeal within 60 days after the Certicate of Delay. 35. The Record of Appeal was led outside the 60-day timeframe. There is nothing on record to show that the appellant sought and secured an extension of time under Rule 4 of the Rules to extend the time. 36. Since the respondent did not formally move the Court to strike out the Record, the Court will not dwell on the issue. 37. In conclusion, the Court nds that the Appeal is devoid of merit and it is dismissed with no order on costs, considering the history of litigation between the parties right from the subordinate Court. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. L. ACHODE https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1787/eng@2026-09-25 4

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............................ JUDGE OF APPEAL R. NGETICH ............................. JUDGE OF APPEAL RADIDO S. OKIYO ............................ JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1787/eng@2026-09-25 5

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