Wdw v Kut

considered by Hon Justice J.N Njagi, who vide his ruling dated 25th July 2024 allowed the Appellant to Appeal against the ruling of the learned Kadhi dated 28th February 2023. 4. Based on the above stated chronological background of proceedings, it is obvious that no valid appeal exists against that the judgment of the learned Kadhi dated 19th September 2022 and this Appeal will singularly delve only with the Appellants Appeal against the latter ruling dated 28th February 2023. B. Pleadings & Evidence 5. The Respondent instituted the primary suit by filing a divorce petition together with her plaint, confirming that they had been married for 21 years, during which period the appellant had subjected her to untold emotional suffering and cruelty, by physically assaulted her and also neglecting to provide for her Masruf/food and other basic essentials. The marriage had irretrievably broken down and thus urged the court to grant her prayers for divorce. 6. In response, the appellant did file his statement of defence and counter claim, where he denied all the averments of the respondent and put her to strict proof thereof. In the counter claim he averred that the respondent did not take her marital responsibility seriously , would spend long hours in their family business and had neglected him since their children were all grown-ups. The respondent had also denied him his conjugal rights and despite all attempts by the elders they had not surmounted their differences and thus prayed that the respondent be directed to take her matrimonial responsibilities seriously as his wife and that she be compelled to return all the household goods she had removed from the house. 7. The learned Kadhi heard both parties and vide his judgment dated 19th September 2022 dissolved the parties union and ordered the appellant to service the payment of dowry and to pay the respondent Eddah maintenance for 3 months. 8. Unfortunately for reasons that this court cannot be deciphered from the proceeding attached herein, the trial court continued to entertain further proceedings from the parties regarding the appellant health status and issues concerning cruelty exhibited by the appellant towards the respondent and vide a ruling dated 6th December 2022, the learned kadhi contradicted the early ruling of 19th September 2022, where he declared that the parties should remain married , with the appellant continuing to maintain the respondent. 9. Further proceedings again were conducted between January & February 2023, which resulted in the impugned ruling dated 28th February 2023, where the respondent was directed not to touch her matrimonial bed, and the applicant directed to continue to maintain his family. 10. Being aggrieved by the said ruling and initial judgment dated 19th September 2022 & Ruling dated 28th February, 2023, the Appellant filed his length memorandum of appeal, pouring his heart out at the perceived injustice melted out against him and stated that: a. The learned Principal Kadhi erred in law and in fact finding that a presumed marriage existed between the appellant and respondent since 24/7/1994 when the parties began courtship. b. The learned trial Principal kadhi erred in law and in fact failing to appreciate that they did not lay any legal basis or grounds for granting nor a divorce nor did she produce evidence to support her claim of customary marriage. c. The learned Principal Kadhi erred in exercising judicial discretion and hence finding that a presumed marriage existed between the appellant and the respondent despite the fact that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1444/eng@2026-02-12 2

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respondent did not lay any basis at all or legal foundation to justify the exercise of judicial discretion in her favour. 11. d. That the learned Kadhi erred in law and in fact finding that the matrimonial home was built by the respondent together with the appellant. e. That the learned trial Kadhi erred in finding that a presumed marriage existed between the appellant and respondent despite the fact that the respondent did not prove existence of the marriage yet the onus was on her who was alleging the existence of the same to do so. f. That the learned principal Kadhi erred in finding that the marriage had irreversibly broken down due to cruelty and threats yet it was the respondent’s evidence on oath, and the same is on the court record, that the appellant was never cruel and in fact was a good man who treated her well, was a provider and took care of her. g. That learned trial Kadhi erred in law finding that there was cogent evidence that the appellant was cruel and hostile to the respondent yet no evidence or explanation of the hostility is tendered. Further, no evidence was adduced by the witness called by the respondent to the effect that she was treated in a hostile or cruel manner. Similarly, no documentary evidence was tendered to demonstrate cruelty and most importantly, h. The respondent gave her testimony and falls evidence that the appellant had HIV Aids. That there was evidence of tests results (HIV test). i. That the learned principal Kadhi erred in finding that there was evidence arrangement of dowry payment, yet the respondent did not produce any documentary and/or photographic evidence of dowry payment. What the respondent instead produced was a document from Ass. Registrer Muslim Marriages dated on 24th July, 1994 that belong to her and the appellant. j. The learned trial Principal Kadhi erred in law, by taking into consideration of the oral evidence of the respondent’s witness and whose entire testimony on the court record as based on hearsay. k. that the learned principal Kadhi did not exercise his discretion judiciously. The Appellant thus urged the court to find that the said Appeal has merit and be pleased to allow the same. C. Analysis and Determination 12. I have considered the pleadings, evidence presented, and submissions of the parties in this appeal. This court, first and foremost, is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusion, given that a first appeal is a valuable right of the parties and, unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. 13. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising, along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari Vs Purushottam Tiwari (Deceased) by L.Rs (2001) 3 SCC 179. 14. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1444/eng@2026-02-12 3

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law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Joseph AIR 1969 Kerala 316. 15. Though the Appellant filed an elaborate memorandum of Appeal raising twelve (12) grounds of Appeal, issues raised can be condensed and determined on the question of appropriateness or legality of the ruling dated 28th February 2023, since no leave was granted to the said Appellant to challenge the judgment issued by the trial court dated 19th September 2022. 16. The trial court became functus office once it delivered its judgment dated 19th September 2022 and therefore acted without jurisdiction to entertain further evidence of the parties on in November 2022 and making a ruling there upon on 06th December 2022 and 28th February 2023. See Court of Appeal in Telkom Kenya Limited vs. John Ochanda (Suing on his Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR & Supreme Court decision in Raila Odinga & 2 Others vs. Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR. 17. The said subsequent proceedings and ruling were a nullity abinitio, and nothing can arise from the same. In Benjamin Leonard Macfoy United Africa Company Limited (UK)[1962] AC 152, the English Court succinctly made the point that: “ The court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the court ...” And; “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 18. The upshot is that the orders issued on 28th February 2023 were an nullity and were void abition. E Disposition 19. This Appeal is therefore partially successful. The determination of the Honourable Kadhi dated 28th February 2023 are set aside in its entirety. 20. This being a family matter, each party will bear their own costs as this Appeal. 21. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MARSABIT THIS 12TH DAY OF FEBRUARY 2026. FRANCIS RAYOLA OLEL JUDGE DELIVERED ON THE VIRTUAL PLATFORM, TEAM THIS 12TH DAY OF FEBRUARY, 2026. In the presence of: N/A ……………………………………Appellant N/A ……………………………………Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1444/eng@2026-02-12 4

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Mr. Jarso…………………………Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1444/eng@2026-02-12 5

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