Dkm v Pnk

e. 2. That the learned Magistrate erred in law by failing to take into consideration the submissions made on behalf of the appellant. The Appeal was canvassed via written submissions. The submissions of the appellant are dated 9th July 2025 while those of the Respondent are dated 1st September 2025. Analysis 3. This is a first appeal. The duty of a first appellate Court was succinctly stated by Hon. M. Odero J in Njoroge v Gakere & another [2025] KEHC 4048 (KLR in the following words: (14) 4. 5. 6. Therefore the appropriate standard of review in cases of appeal can be summarized in the following three principles:(1) On first appeal the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions. (2) In reconsidering and re-evaluating the evidence of the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. (3) It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time. The Respondent herein initiated the matter in the trial court via Petition dated 9th May 2019, in which she sought the following ordersa. That the petitioner and the Respondent be judicially separated. b. That the respondent be permanently restrained from molesting, assaulting, annoying, harassing or otherwise interfering with the Petitioner peaceful occupation and or procession (sic) of LR No. Nairobi/ Block-82/2456. c. That the respondent to be ordered to pay the Petitioner Kshs 20,000/-monthly or as this Court may consider reasonable for her maintenance and upkeep. d. That the respondent be permanently restrained from locking the petitioner from the matrimonial home at any given time. e. That the respondent to bear the costs of this cause. f. Any other or further relief that this Honourable Court may deem just and fit to grant in the circumstances. In response the appellant herein the respondent filed an Answer to Petition and Cross Petition dated 17th September 2020, in which he sought the following ordersa. That the marriage between the respondent and the Petitioner be dissolved. b. Costs of the Petition. Pleadings closed with the filing by the respondent herein of undated reply to answer to Petition and Answer to Cross Petition in which she asked that the cross Petition be dismissed, and Petition be allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/135/eng@2026-01-16 2

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7. The matter proceeded by viva voce with both the appellant and respondent testifying as sole witness of their respective cases. It was the respondent’s testimony that she and the appellant were married under customary law in 1987. She sought judicial separation on account of the appellant’s acts of cruelty, including assaulting her, locking her out of the matrimonial home and engaging in adulterous relationships. At the time of the hearing, the appellant had deserted the matrimonial home, he was an infrequent visitor, and the couple had not been sexually intimate since 2019. Attempts at reconciliation had failed. 8. She sought monthly maintenance of Kshs. 20000/- per month. Her proposal being that the same be paid out of the rental income. She testified that the appellant was a man of means on pension from Kenya Commercial Bank and collecting rental income from an apartment. She was opposed to the dissolution of the marriage. 9. She conceded that they had not shared a bedroom since 2019 and the respondent cooked for himself and washed his own clothes. She was prepared to resume consummation of the marriage, but the appellant was not responsive. 10. In his testimony, the respondent conceded that they had been married since 1987 and that at the time of the hearing they were living in the same house but different bedrooms. He denied that he had formalised a marriage with any other woman insisting that the woman the appellant alleged was his wife, was his former work colleague with whom he had joint businesses. 11. He denied the acts of cruelty, confirmed that he was no longer including the respondent in medical cover taken out by him. He stated that the last time the Couple had shared the same bed was in 2015, they were not on talking terms. He insisted that the marriage should be dissolved stating that he feared for his life. 12. At the Conclusion of the trial, having considered the submissions filed, the Court in its judgment delivered on 13th October 2023, determined thata. The marriage between the parties be dissolved and a decree nisi issue forthwith. b. The appellant pay the respondent spousal maintenance of Kshs 20,000 per month effective 5th November 2023 and thereafter on the 5th day of every successive month. 13. The Court further directed the parties to proceed before the appropriate forum for a determination on their respective rights to the matrimonial property. 14. The appeallant then filed this appeal challenging the order of Spousal maintenance. 15. In his submissions, the appellant challenges the Court’s finding that there was a valid marriage. He further challenges the order that he provide spousal maintenance on the ground that the respondent did not discharge the evidentiary burden at the trial. He states that the respondent only sought the maintenance during the pendency of the marriage and not on its dissolution. 16. It is further submitted that the respondent having failed to produce an affidavit of means or proof of the appellant’s earnings was not entitled to the maintenance of Kshs 20000/-. Reference is made to the following decisions; JB M v BNB [2013] KECA 404 (KLR); MEK v GLM [2018] KECA 543 (KLR); PKM vs RPM [2017] eKLR; LCS vs SKS [2023] eKLR [2023] KEHC (KLR). 17. The respondent frames the following as the issues for determinationa. Whether the trial Magistrate erred in presuming the existence of the marriage between the parties? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/135/eng@2026-01-16 3

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b. Whether the trial Magistrate erred in awarding the respondent Kshs 20000 in spousal maintenance? 18. On the first issue it is submitted that the Court’s determination that there was a marriage is legally sound in light of the provisions of Section 119 of the Evidence Act and the decision of the Supreme Court in MNK v POM; Initiative for Strategic Litigation in Africa ( ISLA)( Amicus Curiae) [2023] KESC 2 (KLR). 19. On the 2nd issue it is submitted that the Court did not err in awarding spousal maintenance and reference made to the decisions in T J M v A K M [ 2015] KEHC 7610 (KLR) and RGN v JRKN [2015] KEHC 4595 (KLR). Determination 20. 21. Having considered the pleadings herein, submissions filed and the relevant law, I frame the following as the issue for determinationa. Whether the trial Magistrate erred in holding that there was a valid marriage between the parties? b. Whether the trial Magistrate erred in finding that the respondent was entitled to monthly Spousal Maintenance of Kshs 20,000/- c. What if any are the consequential orders arising from (a) and (b) above? d. Who should pay costs? On the 1st issue, the issue of the validity of the marriage was raised in the submissions of the appellant. It is not one of the grounds of appeal in the Memorandum of Appeal before Court. It is a well established principle that parties are bound by their pleadings. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held. inter alia, as follows in an election petition: In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings... 22. In raising the issue of the validity of the marriage the appellant is going beyond his pleadings. In addition he really cannot raise this as a ground of appeal at this stage when at the trial he conceded in his pleadings and in evidence that there was a marriage between him and the respondent. For this reason I affirm the decision of the trial court in finding that it was safe to presume that there was a marriage between the two. 23. On the 2nd issue, in her pleadings and in her evidence the respondent stated that she was seeking support of Kshs 20,000 monthly from the appellant. The appellant did not challenge this in his reply to Petition, at cross examination and in his evidence in Chief. It is at the appeal that he is challenging this prayer. The evidence of the respondent not having been challenged, the Court was right in awarding https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/135/eng@2026-01-16 4

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her the maintenance sought. I have considered the Court of Appeal authorities cited by the appellant and note that they all related to the repealed Matrimonial Causes Act, 2012. 24. This divorce Petition was presented under the Marriage Act and the Marriage ( Matrimonial Proceedings) Rules. Whereas the repealed statute under rules 45 and 46 made it mandatory for parties to file affidavit of means in support of an application for alimony, the current law does not have a similar provision. 25. Section 77 (1) of the Marriage Act provides77. Grounds for order of maintenance (1) 26. The court may order a person to pay maintenance to a spouse or a former spouse— (a) if the person has refused or neglected to provide for the spouse or former spouse as required by this Act; (b) if the person has deserted the other spouse or former spouse, for as long as the desertion continues; (c) during the course of any matrimonial proceedings; (d) when granting or after granting a decree of separation or divorce; or (e) if, after making a decree of presumption of death, the spouse or former is found to be alive. I have also considered the decision in LCS v SKS [2023] KEHC 24922 (KLR) and specifically at paragraph 37 where the emphasized that the current law leaves it to the discretion of the Court on the granting of maintenance. The trial Court exercised its discretion in awarding the respondent maintenance. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated: This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. 27. The basis has not been laid for me to interfere with the discretion of the trial court, which had the benefit of seeing and observing the parties. The Court was therefore persuaded that under the circumstances it was just to make an order of maintenance in favour of the respondent. 28. The appellant in his submissions asserts that the Magistrate erred in awarding maintenance post the dissolution of the marriage. A careful reading of Section 77 (d)of the Marriage Act will show that this argument is not sustainable as the Court is mandated to award maintenance ‘when granting or after granting a decree of separation or divorce’ 29. Section 78 and 79 of the Marriage Act provide for the lapsing and termination of maintenance orders, which is to suggest that ideally the orders are not meant to be in perpetutity, especially where the marriage is dissolved. I would therefore vary the order of the trial Court to give a time frame that will allow the respondent to make adjustments that will enable her to support herself. 30. Owing to the above these are the final orders a. The decision of the trial court to award monthly maintenance of Kshs 20,000, effective 5th November 2023, is upheld https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/135/eng@2026-01-16 5

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b. The same is payable for a period of 5 years from the date of the Judgment in the trial court c. Each party will bear its own costs. d. Parties at liberty to exercise their right of appeal within 30 days. It is so ordered DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH JANUARY, 2026. P. M. NYAUNDI JUDGE In the presence of: Fardosa - Court Assistant. Ms. Mumbi for Morara for Respondent. Inyangu for Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/135/eng@2026-01-16 6

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