Lkk v Lwk

1. That the Learned Trial Magistrate erred in law by granting Kshs.150,000/= to the Respondent for monthly shopping and maintenance plus an order for payment of medical cover among other things notwithstanding that she had dismissed her prayer for alimony or maintenance. 2. That Learned Trial Magistrate erred in law and in fact by purporting to make orders ostensibly for the benefit of the parties’ adult daughter who was not a subject of the court proceedings and was not a party thereto. 3. That Learned Trial Magistrate erred in law and in fact by whimsically awarding a figure of Kshs.150,000/= without any legal and factual basis whatsoever as the needs of the parties’ adult daughter were not the subject of the trial and no evidence thereon had been adduced. 4. The Learned Trial Magistrate exceeded her jurisdiction by proceeding to make an award of Kshs.150,000/= having already dismissed the Respondent’s prayer for alimony. 5. The Learned Trial Magistrate erred in law and in fact by making indefinite orders with no time limit which was highly irregular and illegal. 6. The Learned Trial Magistrate erred in law and in fact by making contradictory orders after finding at page 17 of the judgment that the Respondent was “well of means and capable of fending for herself.” 7. The Learned Trial Magistrate erred in law and in fact by converting the Appellant into a beast of burden in total disregarding of the constitution and the law which state that parties should be treated equally during and at the dissolution of marriage and none should be converted into a beast of burden for the other. 4. He asked the Court to allow the appeal, set aside the judgment and decree issued on 11th December, 2024, and substitute the same with a judgment and decree dismissing the Respondent’s prayer for divorce and maintenance. 5. The appeal was canvassed by way of written submissions. Appellant’s written Submissions 6. The Appellant submitted that the lower Court was wrong in granting maintenance to the Respondent, arguing that the decision was fundamentally inconsistent with the current legal position on this area. He argued that in law, maintenance or alimony is intended to provide basic sustenance to spouses who are unable to support themselves, and it is not meant to supplement the income of financially independent spouses. He argued that the Court did not refer to the Respondent’s independent income and assets and that it had already found that she was well of means and capable of fending for herself. 7. In addition, the Appellant submitted that the lower Court was wrong in purporting to make orders ostensibly for the benefit of the parties’ adult daughter. He argued that no claim was laid and no evidence was adduced on the issue of the adult daughter, none regarding her financial needs, and she was not a party to the proceedings. Lastly, he submitted that the maintenance orders were contrary to established precedence because they had no specified duration, arguing that maintenance awards always have a clear timeframe and they rarely go beyond 6 months. Respondent’s written Submissions 8. The Respondent submitted that the Appeal should be dismissed, arguing that the learned Trial Magistrate properly exercised her discretion in granting the impugned maintenance orders and thus https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11194/eng@2026-07-13 2

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this Honourable Court should not interfere with the same. She argued that this is an appeal against the discretionary orders/exercise of discretion by the trial Court and thus this Court can only interfere with the decision if the discretion was not exercised judiciously and properly. She submitted the Appellant had not demonstrated or described how the trial Court’s exercise of discretion was wrong. 9. She submitted that, even though the lower Court dismissed her prayer for maintenance, it was exercising its inherent jurisdiction under Section 3A of the Civil Procedure Act, which empowers courts to make such orders as may be necessary to meet the ends of justice. She argued that the Court made the order because it had noted that one of the issues of the marriage is a person with special needs, who, owing to her condition, remains dependent on parental care and support. She argued that the order was not for her personal benefit, but rather for the upkeep and welfare of their adult child with special needs. Issues for Determination 10. Having carefully considered the grounds of appeal and the parties’ respective submissions, I find that there are two issues for determination; a. Whether the lower court awarded the Respondent Alimony; b. Whether the orders made by the lower court were warranted/merited. The Role of the Appellate Court 11. The role of this Court as the first appellate Court is well-settled. It is trite law that the duty of the first appellate Court is to re-evaluate the evidence before the subordinate court, both on points of law and of fact, and to arrive at its own findings and conclusions. As the court re-evaluates the evidence, it must bear in mind that it has neither seen nor heard the witnesses. 12. This principle was set out in Okeno vs. Republic (1972) EA 32, where the East Africa Court of Appeal stated as follows; “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 13. Based on this authority, this Court is required to undertake a wholesome review of the Respondent’s suit at the lower Court and come up with its conclusion. Whether the Lower Court awarded the Respondent Alimony 14. Seemingly, the parties do not agree on the nature of the orders granted by the lower Court. In particular, they do not agree whether the said orders are Alimony/spousal maintenance orders or otherwise. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11194/eng@2026-07-13 3

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15. From the Appellant’s perspective, he believes that the orders granted by the lower Court are Alimony/ spousal maintenance orders. On the other hand, the Respondent does not share this view because she acknowledges that the lower Court dismissed her claim for Alimony. Instead, she submitted that what the lower Court gave her was not Alimony but rather a maintenance order for the upkeep and welfare of their adult daughter with special needs. 16. Due to these divergent perspectives, I find it prudent to first determine whether the lower Court indeed granted alimony or spousal maintenance to the Respondent. I have read the judgment of the lower Court to determine this issue. At page 17 of the Judgment, the lower Court stated as follows; “ From the above, it is evidence that the [Respondent] is well of means and capable of fending for herself. No proof was satisfactorily profiered on a balance of probabilities to ascertain that she is incapable or incapacitated thus unable to sustain herself … I find that the claim for spousal maintenance is unmerited and is accordingly dismissed.” 17. In the disposition of the case at page 18, the lower Court stated as follows; “ In that regard as I decline the prayer for alimony or maintenance for the [Respondent]..” 18. Based on the above extracts of the judgment, I find that the lower Court did not grant alimony or maintenance to the Respondent. In my view, what the lower Court granted were orders for the maintenance of the adult daughter with special needs. This conclusion leads us to the next issue for determination. Whether the orders made by the lower Court were merited 19. The next issue for consideration is whether the lower Court was justified in issuing orders for the maintenance and upkeep of the adult daughter with special needs. 20. The Appellant submitted that the lower Court was not justified in issuing the maintenance orders, arguing that a Court cannot make an order for the benefit of an adult person who is not a party to the proceedings. He also submitted that no claim was laid and no evidence was adduced regarding the adult daughter’s financial needs. On the other hand, the Respondent submitted that the Court was exercising its inherent power and jurisdiction under Section 3A of the Civil Procedure Act, which empowers courts to make such orders as may be necessary to meet the ends of justice. 21. I have perused the Respondent’s Petition dated 4th October, 2017 in which she outlined her prayers. I noted that she did not specifically plead maintenance for the adult daughter with special needs. She also acknowledged in her submissions that she did not specifically plead this issue. 22. However, the fact that the Respondent did not specifically plead the maintenance and upkeep of the said adult in her documents does not automatically preclude the Court from awarding the same. This is because Courts have held that a Court can grant relief not specifically prayed for, provided that the issue arose during trial and the parties left it to the Court for determination. This rule was established by the Eastern Africa Court of Appeal in Odd Jobs vs Mubia (1974) EA 476, where it was stated as follows; “ With respect to the learned Judge, that issue does not flow from the pleadings. However, that notwithstanding, a court may base a decision on an unpleaded issue where, as here, it appears from the course followed at the trial, that the issue has been left to the court for decision.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11194/eng@2026-07-13 4

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23. The above decision was recently adopted by the Court of Appeal in Tukai v Muge & 2 others (Sued as Chairman, Secretary & Treasurer of Kapkween Farmers Co-operative Ltd) [2014] KECA 155 (KLR), where the Court held as follows; “ Later in Galaxy Paints Co Ltd V Falcon Guards Ltd [2000] 2 EA 385, this Court reiterated that the issues for determination in a suit generally flowed from the pleadings and that a trial court could only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for the courts determination. The Court added that unless pleadings were amended, parties were confined to their pleadings. The exception to the rule arises where the parties, in the course of the hearing, raise an issue that was not pleaded and leave the same to the court to decide. Hence in ODD JOBS V MUBIA [1970] EA 476, Law, JA; speaking for the predecessor of this Court stated that: “[A] court may allow evidence to be called, and may base its decision, on an unpleaded issue if it appears from the course followed at the trial that the unpleaded issue has in fact been left to the court for decision.” (See also Vyas Industries Ltd V Diocess Of Meru [1982] KLR 114)” 24. In addition, the Court of Appeal in Wanjohi v Mukabi (Civil Appeal 144 of 2017) [2021] KECA 476 (KLR) approved this position and held as follows; “ In Odd Jobs vs Mubia (supra), the Eastern Africa Court of Appeal held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for determination. In Vyas Industries vs Diocese of Meru [1976] eKLR, the Eastern Africa Court of Appeal applied and approved Odd Jobs vs Mubia (supra), holding that, as the advocate for the appellant had led evidence during the trial and addressed the court on the unpleaded issue, the trial court could base its decision on the unpleaded issue, as the issue had been left for the court’s decision during the trial.” 25. The Court of Appeal in Wanjohi v Mukabi (supra) gave general guidance on how a court should proceed in these circumstances where an issue had not been pleaded in the pleadings. It established that the Court should address itself as to whether, on the facts before her (including the course followed at the trial), the parties had left the issue that had not been pleaded in the pleadings to be determined by the Court. It observed as follows; “ 36. The learned Judge did not properly direct herself on the issue of failure to plead mistake to the extent that she relegated its relevance to whether or not this caused prejudice to Wairimu… The issue that the learned Judge ought to have addressed herself to, was whether on the facts before her, including the course followed at the trial, the parties had left the issue of mistake that had not been pleaded in the pleadings, to be determined by the court. 38. Given the fact that the issue of mistake was raised in the list of issues filed by each of the parties, and that during the hearing witnesses gave evidence that touched on the issue of mistake, and that in the written submissions the issue was extensively addressed by each of the parties, it is clear that the issue was left for the determination of the court. Wairimu cannot now turn around and blame the court for addressing and determining the issue.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11194/eng@2026-07-13 5

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26. Based on the above authority, this Court is being invited to determine whether, based on the facts before it, the parties left the issue of the adult with special needs to be determined by the Court. 27. I have perused the record to determine the extent to which the parties canvassed the issue of the maintenance and upkeep of the adult with special needs. During the hearing, the witnesses did not give evidence that touched on the issue of the maintenance and upkeep of the said adult. The Respondent, as PW1, testified that she has a special child who needs round the clock care, and that she had no money to pay a house help to care for the special child. She did not go beyond that; she did not state the monthly expenses related to the said adult. Appellant, as DW1, only acknowledged that they have a child with special needs. 28. Save for what I have highlighted above, the parties did not talk more about the said adult. The lower Court also acknowledged that nothing had been said concerning her. I have also seen the Respondent’s submissions filed at the lower Court dated 9th September, 2024, and it is clear that she did not raise the issue in the said submissions. In the said submissions, she argued that she was seeking maintenance for herself, but she did not state that part of the maintenance was to go for the upkeep of the adult with special needs. 29. Based on this analysis, I am not persuaded that the parties herein left the issue of the upkeep of the adult with special needs to be determined by the Court. The parties did not canvass the issue of her upkeep and maintenance during the trial at the lower Court. I therefore find that this issue is not available for this Court to determine because the Respondent did not plead the same and the facts of the case do not place it within the exception established in Odd Jobs V Mubia [1970] EA 476. 30. The Appeal thus succeeds. Disposition 31. The Appeal is allowed. 32. The part of the Lower Court’s Judgment directing the Appellant to pay monthly shopping and general maintenance of the home in the sum of Kshs.150,000/= is hereby set aside. 33. The part of the lower Court’s Judgment allowing dissolution of the marriage between the Appellant and the Respondent and the issuance of a Decree Nisi is hereby upheld. 34. No order as to costs. 35. Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 13TH DAY OF JULY, 2026. ………………………. C. KENDAGOR JUDGE In the presence of: Court Assistant: Racheal Mr. Gaita, Advocate for the Appellant Mr. Muuo, Advocate for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11194/eng@2026-07-13 6

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