GWM v FMM (Matrimonial Cause E002 of 2025) [2026] KEHC 2488 (KLR) (23 February 2026) (Ruling) Neutral citation: [2026] KEHC 2488 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUSIA MATRIMONIAL CAUSE E002 OF 2025 WM MUSYOKA, J FEBRUARY 23, 2026 BETWEEN GWM .......................................................................................................... APPLICANT AND FMM ....................................................................................................... RESPONDENT RULING 1. In the course of preparing the judgement in this matter, I have come across an averment, in the affidavit supporting the originating summons, sworn on 24th March 2025, which I had not had the benefit of seeing prior to commencing the oral hearing. It reads: “ That the Respondent is well known in Busia and all my attempts to get justice in Busia have failed hence the reason why I have decided to file this matter in Nairobi High Court which has competent jurisdiction.” 2. The cause was initially filed at the High Court in Nairobi, before it was transferred to Busia, by an order of the Judge in Nairobi. My understanding, of the averment, is that the applicant had sought justice from the courts at Busia, but she could not get any, because the respondent was well known to the judicial officers at Busia, hence the decision to file the matter in Nairobi. That is an expression of lack of confidence in the courts at Busia. 3. I do not know the respondent. I have never met him, outside of the court environment, and I only saw him, for the first and last time, in court, when he came to testify in this matter. The only thing, of note, is that he and I appear to hail from the same ethnic community in Kenya. However, that, of itself, should not mean that every Mukamba in Busia knows every other Mukamba in the town. 4. Cases are decided on the basis of their unique facts and the applicable law. Facts remain facts, for they cannot be recreated by the court, to suit a particular party. The law also remains the law, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2488/eng@2026-02-23 1
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court cannot create its own law, to suit the needs of a particular party. Even where a trial court plays hanky-panky, appeals loom, where expanded panels, of more senior Judges, re-visit the decision, reevaluate the facts, as against the applicable law, and come up with their own decisions. It would be pedestrian, therefore, to assume that, since the Judge in town is a Mukamba, and the respondent is also a Mukamba, the Judge would rule in his favour, to the disfavour of the non-Mukamba applicant. 5. Such thinking would be an insult to the legal learning, professionalism, experience and intelligence of the Judge, as well as of the legal and judicial systems, which are founded on the notion that the legal professionals, involved in these cases, are sufficiently qualified legal technicians, who do not decide matters on pata potea basis. These cases are won or lost, based on their own unique facts and the applicable law, long before they are even conceived and filed in court. 6. The cause herein was initiated in 2025, when I was already serving in Busia, and the expression of lack of confidence, in the Busia courts, would include the court that I am presiding over, and which is now seized of this matter. I have never handled, previous to this matter, any other cause, involving the applicant and the respondent, where it could have been assessed or adjudged that the applicant did not get justice from my court, for her to aver, on oath, that she had failed in her efiorts to get justice in Busia. Indeed, I have never handled any other matter where either of the 2 parties were parties. 7. As the applicant had no confidence in the courts at Busia, at the time she conceived this cause, hence its filing in Nairobi, the transfer of the matter to Busia, to be heard by the same courts that she was avoiding, in the first place, was forced on her, by circumstances beyond her control. The applicant chose not to submit to the jurisdiction of the Busia court, and chose that of the Nairobi court. The mantra remains that justice must not only be done, it should be seen to be done. Where a party has already cast a vote of no confidence, against a particular court, justice would not be seen as done, if that court handles the matter, even if, ultimately, justice is, in fact, done, by that court, in accordance with the circumstances of the case and the applicable law. 8. It would not be just, for me, therefore, to determine a matter, where the applicant had already predetermined, at its conception, even before it was filed, that I would not deliver justice to her. The best think to do, in the circumstances, should be to let go of the matter, by way of recusing myself from it. Let the same be handled by another Judge. DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 23RD DAY OF FEBRUARY 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Advocates Mr. Kivuva, instructed by KMA, Advocates for the applicant. Mr. Okutta, instructed by Ouma-Okutta & Associates, Advocates for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2488/eng@2026-02-23 2
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