NAM v ARA (Civil Case 168 of 2014) [2015] KEKC 25 (KLR) (28 May 2015) (Judgment) N A M v A R A [2015] eKLR Neutral citation: [2015] KEKC 25 (KLR) REPUBLIC OF KENYA IN THE KADHIS COURT AT MOMBASA CIVIL CASE 168 OF 2014 AH ATHMAN, PK MAY 28, 2015 BETWEEN NAM ............................................................................................................. PLAINTIFF AND ARA .......................................................................................................... DEFENDANT JUDGMENT 1. The plaintifi claims the defendant did not pay her dowry, that he was violent, cruel and severally assaulted her resulting to head fracture and bleeding needing medical treatment in India. She claims the defendant agreed to give out his house to be sold to finance her treatment but reneged on his agreement and refuses to handover the house. She prays for: 1. Divorce certificate 2. Dowry, past and eddat maintenance 3. [Refund for] Electrical items the defendant sold. 4. Sale of the house for her medication 2. The defendant denied the plaintifi's claims. He specifically denies having agreed to sale his family house to finance plaintifi's medication. 3. The parties were married under Islamic law on September 5, 2012 at Mombasa. On July 8, 2014, the defendant divorced her. The parties recorded the following consent on September 24, 2014: 1. The parties are divorced w.e.f. July 8, 2014 2. Defendant to pay dowry KES 45,000.00 3. Defendant to pay the plaintifi KES 45,000.00 being edda maintenance https://new.kenyalaw.org/akn/ke/judgment/kekc/2015/25/eng@2015-05-28 1
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4. Defendant to pay the plaintifi KES 25,000.00 being refund of her electrical items sold by defendant 5. That the defendant shall treat the plaintifi having caused her injuries. 6. No orders as to costs 7. The issue of the house to go trial. 4. The consent was adopted by court. The only issue remaining for determination is whether or not the defendant entered a valid agreement to have the suit house without land on Plot No. […] at Kisauni sold to cater for plaintifi's medication. 5. Plaintifi's evidence is AAK, her mother [PW1] and the sale agreement dated March 24, 2014. PW1 testified she heard the defendant say he had given the house to the plaintifi. However under cross examination she said she did not know issues relating to the house. Evidence adduced in court show although the agreement is commissioned by an advocate, It was not signed before him. The defendant never appeared before him to append his signature on the agreement. The defendant denies the signature is his. There is no evidence that the house belongs to the defendant to determine that he had locus to execute the alleged agreement. 6. Mr Hamza submitted we have no jurisdiction to adjudicate on matters of agreements. This was an agreement in a marital dispute between two Muslims where the couple have divorced. The agreement is part of the divorce dispute. We have jurisdiction to hear and determine such disputes. However in this case there document has so many inconsistencies and cannot support the agreement of transfer or sale of the house to finance plaintifi's medication. The claim of the agreement is dismissed for lack of suficient proof. 7. Having said that, the defendant did, through consent entered and adopted by court, admit having caused the plaintifi's injuries and undertook to treat her. The plaintifi had visibly sustained serious injuries. I direct that the defendant pays the plaintifi KES 500,000.00 to finance her treatment. Orders accordingly. DATED AND DELIVERED AT MOMBASA ON 28TH MAY 2015. ABDULHALIM H. ATHMAN PRINCIPAL KADHI In the presence of Mr. Yusuf K. Abdulrahman, Court assistant M/S Mwanhunga Mtana & Co. for plaintifi Mr. Hamza for defendant https://new.kenyalaw.org/akn/ke/judgment/kekc/2015/25/eng@2015-05-28 2
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