Francis Kiarie Mwaura VS Hannah Waithera

BETWEEN

1. The Appeal arose of the Judgment delivered on 25th February 2022 in Divorce cause No. 119 of 2020 which dismissed the Appellant’s Petition on the ground that the Appellant had failed to prove the grounds set forth in his petition.

2. The Petitioner/ Appellant had filed Divorce Cause No. 119 of 2020 seeking to dissolve the marriage between him and the Respondent’s on grounds of cruelty and the irretrievable breakdown of the marriage.

3. The grounds of cruelty were enumerated in paragraph 10 of the Petition and the actions depicting irretrievable breakdown of the marriage in Paragraph 11.

4. The Respondent subsequently filed an Answer to petition and Cross- Petition, denying the Petitioners averments in paragraphs 10 and 11 relating to allegations of cruelty and the irretrievable breakdown of the marriage. In paragraph 9 of the cross- petition the Respondent averred that it was the Appellant who had been guilty of desertion, exceptional depravity, adultery, disrespect, cruelty and emotional abuse causing the marriage between the Petitioner and the Respondent to be on the blink. In paragraph 11 of the Cross Petition, the Respondent averred that she has suffered mental and psychological anguish, depression and has undergone traumatic experiences due to the actions of the Petitioner. Both the Appellant and respondent filed statements that were admitted by the Court.

5. The Respondent sought  alimony for herself and maintenance for the 2 adult children of the marriage.

6. The Appellant filed His reply to the Answer to the Petition and Answer to the Cross Petition in which he reiterated the averments in the Petition and countered the averments in the Cross- Petition.

7. Both parties gave oral evidence before the Court. The trial magistrate found that the evidence adduced did not meet the threshold for grant of dissolution of the marriage and dismissed the petition with no orders as to costs. In dismissing the Petition, the Magistrate stated she was giving the parties a chance to try and reconcile.

8. Being aggrieved by the trial court’s decision the Appellant herein filed the instant appeal dated 6th October 2022, based on 8 grounds of appeal which are;

a. THAT the learned Senior Resident Magistrate erred in law in dismissing the Appellant’s Petition for Divorce.

b. THAT the learned Senior resident Magistrate erred in law in failing to address herself as to the question of whether the marriage had irretrievably broken down.

c. THAT the learned Senior Resident Magistrate erred in law in failing to address herself to the Respondent’s Cross Petition, wherein the Respondent also sought dissolution of marriage albeit on different grounds and allegations

d. THAT the learned Senior Resident Magistrate erred in law in failing to Consider the binding precedent in the case of RNO v BKJ [2021] eKLR as to the standards required for the establishment of cruelty as a ground for the dissolution of marriage.

e. THAT the learned Senior Resident Magistrate erred in law in failing to consider that the parties had lived separate lives for 20 years this falling in the ambit of a presumption of Divorce as per the above cited case of RNO v BKJ [2021] eKLR.

f. THAT the learned Senior Resident Magistrate erred in fact in holding that the Respondent is a resilient wife who still believes in marriage- although the Respondent had also filed a Cross Petition for dissolution of the marriage and grant of alimony.

g. THAT the learned Senior Resident Magistrate erred in law and in fact in failing to consider that the Appellant had previously been served with a decree absolute in 2005 by the Respondent, which led him to believe that he was divorced and could thus remarry.

h. THAT the learned Senior resident Magistrate erred in law and fact in failing to consider that the marriage between the Appellant and the Respondent had irretrievably broken down and could not be salvaged.

9. The parties disposed of the Appeal by way of written submissions. The Appellants submissions are dated 13th October 2022. The Submissions of the Respondent are dated 24th January 2023.

10.  The Appellant frames 2 issues for determination.

a. Whether the learned Senior Resident Magistrate erred in law in dismissing the Petitioner/ Appellant’s Petition.

b. Whether the learned Senior resident Magistrate erred in law in failing to address herself to the question of whether the marriage had irretrievably broken down and could not be salvaged.

11.  The Appellant faults the finding by the trial magistrate that the Applicant failed to prove the grounds of cruelty finding that the incident that was proved was trivial and the finding that the respondent gave plausible reasons to explain her actions as relates to the challenges of cruelty.

12.  The Appellant relies on a number of authorities in support of their assertion that the Appellant did prove his case. Including the decision of Justice G.B. M Kariuki SC (as he then was) in W. M.M v B.M.L [2012] eKLR on definition of acts that cruelty and duty of the Court to provide relief to a spouse.  The Appellant also cited the case on Nunzio Colarossi v Michelina Colarossi (1965) EA 129 that reiterated the fact that the test of whether or not the facts amount to cruelty is not based on a one size fits all definition but rather on a case by case basis, provided the party seeking the relief proves actual or probable injury to life, limb and health.

13. The Appellant took issue with the trial court’s concurrence with the Respondent that the issues raised by the Petitioner are trivialities which can be solved through proper communication challenges.

14.  The Appellant argued further that the Court misdirected itself in not finding that the Respondent had subjected him to emotional abuse in several instances including when she served him with a fake decree of divorce. It is the appellant’s contention therefore that the Trial Magistrate failed to appreciate to consider the gravity of the conduct complained of and the toll it took upon the Appellant.

15.  The Appellant submitted that the Trial Magistrate erred in law in failing to address herself to the question of whether the marriage had irretrievably broken down. It was the Appellants submission that in the Answer to the Petition and Cross Petition the respondent had herself set out allegations against the Appellant that had contributed to the relationship being at a ‘blink’.  The Appellant relied on the authority of RNO vBKJ [2021] eKLR on instances when a Court should find that a marriage has irretrievably broken down.

16.  The Appellant further argued that if the Court had addressed itself to the question of whether the marriage had irretrievably broken down, then as held in V I v J T I [2019] eKLR the court would not have suggested that the parties consider reconciliation as the order;

            Can potentially lead to chaos as a court order is not by itself enough to make a chaotic marriage blissful. The                        Appellant is not ready and willing to live with the Respondent as his wife and the Respondent has no way of forcing             him to do so. The marriage is better of dissolved for safety of the parties if not necessarily for their happiness

17.  The Appellant therefore prayed for setting aside of the Judgement delivered on 25th February 2022 and that this court declare the marriage between the Appellant and the Respondent dissolved and issue a decree nisi and a subsequent Decree Absolute.

18.  The Respondent opposes the Appeal. The Respondent frames the issues for determination as

a. Whether the grounds for divorce raised by the Appellant at the trial court were proved to the required degree; and

b. Whether the grounds of appeal raised lay a substantive ground to warrant revocation of the judgment delivered by the Learned Senior Resident Magistrate.

19.  The Respondent submits that the appellant having failed to prove his case the Court was right in dismissing the petition and relies on the case of  DMM v MHM [2021] eKLR. It is the Respondent’s stand that the acts complained of did not meet the required threshold of gravity as set out in the case of  Meme Vs Meme [1976] KLR  and in particular that

          

          It must be more than trivialities. In many marriages there are occasional outbursts of temper, occasional use of                  strong language, occasional offended silences. These are not sufficient to amount to cruelty in ordinary             circumstances, though if carried to a point threatens the health of the spouse, the law will not hesitate to award             relief.

20.  The Respondent contends that the grounds of Appeal do not warrant the revocation of the judgement delivered by the Learned Senior Magistrate. Specifically, the Respondent states that the Magistrate did consider whether the marriage had irretrievably broken down. The Respondent contends further that she did not seek for dissolution of the marriage as the same was not pleaded and that therefore the Magistrate exercised her discretion rightly by requesting the parties to reconcile. The Respondent distinguishes the decision in RNO v BKJ [2021] eKLR and submits that it is not applicable in the instant case.

21.  The Respondent therefore calls for the dismissal of the Appeal.

22.  Having regard to the Petition, the response thereto, the parties submissions and the decisions referred to. I discern the following issues for determination

a. Whether the Learned Senior Resident Magistrate erred in law and in fact in dismissing the Petition on the ground that the Cruelty had not been proved to the required standard

b. Whether the Learned Magistrate erred in law and in fact in failing to address herself to the question of whether the marriage had irretrievably broken down and could not be salvaged

23.  This being the first appellate Court, the Court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusion. It must establish whether the decision of the lower court was well founded. The Court is guided by the decision on   Selle & Anor vs Associated Motor boat Co. Ltd ( 1968) EA 123  and more recently in the decision of JM Mativo J ( as he then was) in  Bwire v Wayo & Sailoki ( Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR)

24.  On the 1st question; as to whether or not the Trial Court erred in law and in fact in dismissing the petition on the ground that the appellant failed to prove cruelty to the required standard, the Magistrate made reference to the evidence of the Appellant and that of the Respondent. It was the conclusion of the Lower Court that the facts as presented did not meet the evidentiary threshold required to establish cruelty as required by law.

25.  The Petitioner set out the grounds of cruelty in para 10 of the petition and in particular paragraph 10 (f) averred that the Respondent had slapped him in the presence of their children. Apart from this averment in the Petition, the Petitioner did not in his evidence testify on this issue or provide any other evidence about this allegation.

26.  In the absence of any evidence on this allegation the Trial Magistrate cannot be faulted for holding that the appellant failed to adduce evidence in support of the allegations of cruelty to the required standard in law. The same applies to the other grounds of cruelty set out in the Petition. As correctly observed by the Trial Magistrate the complained of actions of the Respondent were in response to the actions of the Appellant and within the context of a toxic marriage. The standard is that set out in Meme vs Meme cited above.

27.  For that reason, the appeal on this ground fails.

28.  I proceed to consider the 2nd Question; whether the trial magistrate erred in law and in fact in failing to consider the allegation that the marriage had irretrievably broken down. On reviewing the Judgment of the Trial court, there is no indication that the Court addressed itself to this second ground within the Petition, Notwithstanding that the Petitioner had pleaded the same in paragraph 11 of the Petition and had testified about the same. As a first Appellate Court I will proceed to review the evidence presented before the court on this point.

29.  The Petitioner submitted that ‘ the marriage wasn’t working at all since I left Kenya for the US’; ‘ It reached a time I did call but we didn’t communicate’; ‘She cursed me, insulted me and we didn’t even share a room. She denied me conjugal rights’; ‘ In 2016, I went back to Kenya and we got older men to counsel us to no avail. I don’t see the marriage working at all’

30.  Although the Respondent in her evidence stated ‘ I never got tired of the marriage’. In her answer to the Petition she stated that the marriage was on the blink ( brink). Further in her evidence she stated that the Respondent changed in 2015… ‘ he came with so much malice’ She alludes to absence of communication…’ He didn’t even tell me he was coming back, he just shocked me’. At paragraph 14 of her statement, that was adopted she stated, ‘That the Petitioner has over time subjected me to desertion, exceptional depravity, disrespect, cruelty and emotional abuse, which has caused our marriage to be on the blink (sic)’

31.  Having regard to the above, it is not possible to arrive at any other conclusion other than that the marriage between the two had irrevocably broken down. As was stated by J R Karanja J. in the case of MNM vs SJC Divorce Cause No.1 of 2013

        It has all along been apparent that the marriage between the two has irretrievably broken down such that any attempt         to give them time to resolve their marital problems by sustaining it would cause both of them untold anxiety and/ or         psychological torture. It is in their own interest and the interest of justice that the marriage be dissolved, and they be             allowed to move on with their respective lives…’

32.  Accordingly, it is my considered view that the marriage between the parties has irretrievably broken down and it is in the interests of justice that it be dissolved.

33.  I find that the Trial court erred in fact and in law in not considering the question of whether the marriage had irretrievably broken down and could not be salvaged.

34. I hereby set aside the judgment of the trial court and substitute it with the judgment in favour of the Appellant that the marriage between the parties be and is hereby dissolved.

35. I concur with the Learned Magistrate in finding that the Respondent’s claim for alimony for herself and maintenance for the adult children cannot be sustained.

36. It is ordered that a decree nisi do issue to be made absolute within a period of three (3) months instead of the prescribed six ( 6) months.

37. Each party to bear their own costs

Orders Accordingly

SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this……3rd…………day of……Feb…………………..2023

P M NYAUNDI

JUDGE

In the presence of      …………………………………………………………..

Advocates for the Applicant