G K M 1 v G K M 2

studies on attaining the age of 18 years. She denies being a person of loose morals or even sleeping out of the matrimonial home apart from when she was on either business trips or upcountry and at the time the petitioner had full knowledge of the same. She denies being cruel or violent towards the petitioner’s parents that she has taken care of numerous family members of the petitioner with outmost love and care. Further that he took care of his parents when they were sick and ailing and further denies allegations of her intention to destroy a property she heavily invested in. 4. In her cross petition she avers that the petitioner has cruel and guilty of adultery during the subsistence of the marriage and she particularized the same as follows; that sometimes in 1993 she found the respondent in the house help’s room which pointed out he was committing adultery, adding that the petitioner has slept out of the matrimonial home on numerous occasions without any explanation and has even fathered two children out of wedlock with two different women between the year 1980 and 1999. That sometime in 1984 the petitioner was charged with rape for allegedly raping a woman in his Eastleigh clinic. On cruelty she avers that the petitioner has neglected his parental responsibilities and has on various occasions neglected to pay school fees and other expenses for the children of the marriage causing the respondent and the children anxiety and stress. The respondent prays for the petition to be dismissed and that her marriage to the petitioner be dissolved and she be awarded the children of the marriage. That the respondent be ordered to pay reasonable maintenance for the children’s upkeep and maintenance. That the petitioner pay alimony to the respondent. 5. The divorce cause was partly heard before Justice Mugo on 20/12/2012. The plaintiff in his testimony reiterated the averments in his replying affidavit. He sought the court to order the respondent to vacate the matrimonial home and he be left there since he had only allowed the respondent to continue staying there because of his younger daughter who was now in the university. He avers that in 2004 he came from a business trip just to find the respondent had given a stranger a room in the house who was neither a friend nor his relative and he had moved in with his personal effects. That he did not receive any reasonable explanation from the respondent and this necessitated him to ask police to throw him out as a result of the said incidence he developed hypertension and this incidence is what necessitated him to ask his advocates to file a divorce cause to dissolve his marriage to the respondent. He denied any rape allegations adding that the cook had been with him for 15 years. He added that the only time he slept out of the matrimonial home was when he had travelled on duty. He admits to having fathered a baby girl with one, J but claims that that was before he married the respondent and denies fathering a boy out of wedlock. He stated that his children have never missed school due to school fees as he always paid. He testified that he did not have any money to give the respondent as alimony as was already collecting Kshs. 120,000 from the Kilimani property and still earned an income of approximately Kshs. 150,000 to Kshs. 200,000/- from her salon business. He argues that the money he earns from the Kilimani property and the Eastleigh property he uses to pay for his medication and for doctor’s charges. 6. On cross-examination, he stated that the Kilimani property is registered in his names and that he and the respondents did not intend to live together after the divorce. He denied the respondents allegations that she has struggled to maintain the children and refutes the allegations that she earns over 1 million from the Eastleigh property and what he get also goes towards paying taxes. 7. The respondent in her testimony reiterated the averments of her affidavits. She denied the allegations that she destroyed the beehives claiming she did not even know where the same were or watching as the petitioner’s father was being attacked by dogs claiming that the minute she heard about the incidence she went to the police station that had taken him and later on transferred him from the hospital he had been taken to Nairobi Hospital where he was admitted. She added there was no building at Kilimani place and she had only built storage for when she was doing tyre business and only rented it out when the business ended. That the rent realized from the said rent is approximately Kshs. 125,000/- which goes towards paying the rate of the said parcel of land. That she sold her business to set up her salon business and her late brother assisted her in setting it up and also loans she got from Faulu Kenya. She refuted the petitioner’s claim that he only gets Kshs.200, 000 from Eastleigh property adding that some of her children send her money to help with the expenses for food and educating the children. 8. On cross examination she stated that she borrowed approximately 4 million from Faulu which was

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secured by the salon equipment she further goes into detail of the matrimonial property which I understand is before another court as in the matrimonial property suit by the parties as such I will not go into it. 9. The petitioner alleges cruelty and adultery as his grounds for divorce. Cruelty, adultery are grounds for divorce provided for under the Matrimonial Causes Act (repealed) and section 66 of the Marriage Act 2014. The petitioner alleges that the respondent has been cruel to him, his children from his first marriage and even his parents. He has narrated various incidences, which he seeks to use to support his allegations. From the incidence of the respondent attacking his daughter from his first marriage with a fork to looking on while dogs attacked his father, burning his children’s books and using abusive and vulgar language on the petitioner before his friends. These acts in my view amount to cruelty. The petitioner alleges that the respondent also committed adultery but does not in my view adduced sufficient evidence to support the same as such this ground fails. The respondent on her part denies the allegations and lodged a cross petition claiming that the petitioner was cruel to her and that he had committed adultery on various occasions. On cruelty she avers that the respondent abdicated his responsibilities towards the children and neglected to pay the children’s fees and even failed to assist with the household expenses. This in my view to an extent amounts to cruelty not only to the respondent but also towards the children of the marriage. On adultery she avers that the petitioner sired two children out of wedlock however the respondent refutes this claiming that the child Joyce that he sired was before he married the respondent. I find that on the ground of adultery the respondent has not adduced sufficient evidence to support the same. However, her cross petition succeeds as she has proved there is indeed cruelty by the petitioner. The petitioner has also proved cruelty against the respondent and as such his petition succeeds. Both the petitioner and respondent have sought to have custody of the minors who are under 18 years and also maintenance of the minors from each other. I find that this is a matter to be raised with the Children’s Court and as such I will not grant the orders sought on the same. 10.The respondent has sought alimony for herself and the children. In the case of W.M.M V B.M.L [2012] eKLR, it was held that “In considering a claim for maintenance, regard must be made to the provisions of Article 45 (3) of the Constitution of Kenya which recognizes that “parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at the dissolution of the marriage”. No spouse who is capable of earning should be allowed to shirk his or her responsibility to support himself or herself or turn the other spouse into a beast of burden but where a spouse deserves to be paid maintenance in the event of divorce or separation the law must be enforced to ensure that a deserving spouse enjoys spousal support so as to maintain the standard of life he or she was used to before separation or divorce.” 11.In her testimony the respondent has stated that she owns a salon while the respondent is a retired medic. The respondent has not stated what she earns from her salon business nor has she disclosed what the respondent earns. She has also not given a schedule of her needs to justify her prayer for maintenance and as such I cannot grant the same. It is evident that the marriage between the parties has irretrievably broken down and I therefore dissolve the marriage between G K M 1 and G K M 2 cerebrated on 30 th August, 1980. A decree nisi to issue and to be made absolute in 30 days. Each party to bear its own costs. It is so ordered. Dated, signed and delivered this 23rd day of October 2015. R. E. OUGO JUDGE In the presence of:Mr. Nyaga h/b for Mr. Gichuru For the Petitioner Mrs. Nginge h/b for Mrs. Thogori For the Respondent Ms. Charity Court Clerk

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