1. The appellant and the respondent got married on 31st August 2007 at the Registrar’s Office, Mombasa. At the time of the celebration of the marriage, the appellant was a 21-year-old sales lady working in the Middle East. The Respondent was described in the marriage certificate as being a compliance officer. He was 29 years old at the time.
2. The couple’s marriage was blessed with 2 issues born in 2008 and 2013. From the proceedings of the court below, it is evident that the appellant and the respondent have not lived together since 2015.
3. The respondent filed a petition for the dissolution of the marriage. On her part, the appellant cross-appealed for divorce on account that the respondent had been in an open adulterous relationship with other women and that two of such relationships resulted in the births of children out of wedlock.
4. The court below, after hearing the parties, delivered a terse judgment in which it found that the couple were unlikely to resume their “spousal duties given their extended separation”. The court then made the following observation, which directly led to this appeal:
“Secondly, they have already reached an agreement on the arrangement for raising their children, which clearly indicates their unwillingness to reconcile. The first child who feels mistreated by the respondent has been ordered to live with the father.
The third issue is the existence of a maintenance agreement which the respondent has requested to be enforced, and which the petitioner has agreed to honour within 2 years…”
5. The appellant’s appeal deprecates the decision of the court on the ground that it neglected to decide all the issues that were before it. The Respondent, in an interesting turn of events, agrees that the court ought to have pronounced itself on the issue of alimony and, in a similar vein, impugns the decision of the learned magistrate on that ground.
6. The appellants and the respondent aren’t trying to preserve a marriage which they both consider beyond salvage. What this court is called upon to do is to determine a single issue; to wit, the quantum of alimony that the respondent ought to pay. It is the view of the appellant that the respondent ought to pay her Euros 4,000 per month, while the respondent proposes to pay Euros 24,000 in full and final settlement of his alimony obligations over a 2-year period.
7. This court issued directions on 3rd April 2025 regarding the manner in which the appeal and the cross appeal would be canvassed. The parties were directed to file and exchange written submissions. Given the nature of the matter, the parties’ counsel did not highlight their submissions and left it to this court to consider the submissions and deliver the judgment thereafter.
8. I must note that the hearing in the court below was by way of viva voce evidence. The respondent (then the petitioner) and the appellant then the respondent) testified and were cross-examined. That being the case, the court below had the benefit of hearing evidence first and of observing the demeanour of the witnesses, unlike this court.
9. This is the first appeal. The duty of the first appellate Court was settled in the case of Selle & another v Associated Motor Board Company Ltd & others (1968) EA 123, where the Court stated that:
“…An appeal to this Court from the trial by the High Court is by way of a retrial, and the principles upon which the Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind it had neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally…”
10. Similarly, in the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased) [2016] KEHC 4186 (KLR), the court stated that:
“8. The appeal to this court is a first appeal. It is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348.
9. It was further held in the case of Hahn v Singh (1985)KLR 716 that the appellate court will hardly interfere with the conclusions made by a trial court after weighing the credibility of the witnesses in cases where there is a conflict of primary facts between witnesses and where the credibility of the witness is crucial.”
11. Based on the foregoing, I will give due regard to the findings of the court below. Having said that, the appeal is on two issues:
i Whether the court erred by not considering all issues put before it by the parties; and
ii If so, what would be the applicable quantum of alimony in this case?
12. I must hasten to add that payment of alimony isn’t in dispute, as the respondent has expressed a willingness to pay what he considers a fair amount.
13. I will now set out the précis of the parties' submissions. The appellant's submissions are dated 9th June 2025. The appellant identified the issues for determination as follows:
1. Whether the lower court made a determination on the amount of spousal maintenance to be paid.
2. How much should be awarded to the appellant as spousal maintenance?
14. The appellant’s counsel submitted that the court below failed to make a determination regarding the issue of spousal maintenance. The failure, it was urged, amounts to breach of section 77 of the Marriage Act, 2014, “which vests the court with jurisdiction to make orders for maintenance during and after dissolution of marriage.”
15. On the second issue, it was urged that Euros 4000 would be sufficient to enable the appellant to maintain the lifestyle she was used to during the marriage. It was urged that the lump sum of Euros 24,000 would be grossly insufficient to meet her post-divorce living expenses, “having been accustomed to a much higher standard of living during the marriage.”
16. The basis for the said request was that the appellant stopped working upon getting married and that she sacrificed her career progression in favour of their family. Counsel contended that spousal support was premised on fairness. It was contended that, having been out of work for a long period of time, it would be difficult for the appellant to get employed again.
17. On his part, the respondent’s counsel filed written submissions dated 22nd July 2025, in which it was contended that the appellant failed to file an affidavit of means, a failure that was fatal to her claim. The respondent’s counsel relied on the case of PKM v RPM [2017] eKLR.
18. It was denied that the appellant’s rights under Article 45(3) of the Constitution had been violated. Counsel contended that the mere fact that her prayers were denied does not mean that there had been a constitutional violation. Counsel submitted that the court below did not err in failing to adjudicate between competing claims. She denied that there had been a miscarriage of justice.
19. Regarding the cross appeal, counsel submitted that the court should have rendered itself on the issue of spousal maintenance. Reliance was placed on the decision of the Court of Appeal in VVA v HSP [2020] KECA 760 (KLR). Counsel submitted that the court below should have determined whether proposed spousal maintenance was payable or not and that it erred in failing to do so. That being so, it was urged that the court should either accept the proposal that the respondent pays Euros 24,000/- as alimony or outrightly reject it.
20. I have considered the record of appeal and the parties' submissions. I have already identified what I consider to be the issues in this matter and have excerpted the impugned judgment.
21. In my view, the court below ought to have determined all the issues before it; the issue of alimony was live before the Court. I am guided by the Court of Appeal’s decision in VVA v HSP [2020] KECA 760, where it was stated that:
“As already stated above, the Judge failed to pronounce himself on prayer 3 of the application dated 19th May, 2017, based on the erroneous assumption that it is prayer 3 of the application of 19th July, 2017 that had lapsed with the withdrawal of the appeal. This, in our view, was a wrong exercise of discretion, based on a misapprehension and misconception of the correct facts that the Judge ought to have considered and appreciated in the determination of that prayer. We find merit in this appeal.”
22. This Court is therefore justified in disturbing the decision of the Court below on the said ground.
23. Article 45 (3) states that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”.
24. Although section 77 of the Marriage Act provides that the court may order a person to pay maintenance to an ex-spouse “when granting or after granting a decree of separation or divorce,” it is my view that the provision should be read in a manner that reflects the equality ethos of our transformative 2010 Constitution; that is, alimony should be ordered only in rare, very clear cases where justice so demands. Alimony, in my view, is a limitation of the presumption of equality. When payable, it should be intended to assuage real hardship that a financially weaker spouse may face upon the termination of the marriage, and should be for such a period as would allow the weaker spouse to get back on his/her own feet and fend for himself/herself. Permanent alimony may be ordered only in limited cases where a financially weaker spouse can no longer be expected to cater for himself/herself due to age, physical infirmity, or similar conditions. Alimony isn’t a hammock for the financially irresponsible or indulgent spouse to live off the former spouse permanently.
25. It is thus the duty of the spouse seeking the provision of alimony to show that his/her condition is such that it is necessary for a maintenance order to be made. The only way that a Court would know what the fortunes of the spouses are or their respective abilities is if affidavits of means are filed by the disputants.
26. The Court of Appeal, while considering the issue of alimony in the case of PKM v RPM [2017]eKLR, expressed itself as follows:-
“We venture to suggest that whenever a court is faced with an application for maintenance, whether seeking interim relief or upon dissolution of marriage, it must direct the parties to furnish the court with comprehensive information by way of affidavit relating to their respective financial circumstances. The affidavits should detail the assets, income, expenditure and liabilities of each party over the relevant period and should be supported by necessary evidence. If there is a contest over such information, an inquiry or investigation must then be scheduled where the parties are 2 subjected to cross-examination on their affidavits in order for the court to make an informed decision.”
27. In the case of MEK v GLM [2018] KECA 543, it was held that:
“In the absence of any statutory guidelines of specific factors to be taken into account in exercising discretion to grant maintenance to a spouse, the courts will no doubt consider all the circumstances of the case and exercise the discretion judicially. The specific factors stipulated in section 25(2) of the repealed Matrimonial Causes Act, that is, the fortune of the spouses, the ability of the spouse and the conduct of the parties, will continue to be relevant. Other relevant factors include the income of the respective spouses, financial needs, obligations and responsibilities present and in future and the duration of the marriage.”
28. In this case, the appellant did not file an affidavit of means. There could not, therefore, have been any basis for awarding her Euros 4,000 per month, which amount, in any case, appears excessive.
29. My view is that the appellant’s contention that she was used to a higher standard of living is debatable, as the parties had lived apart for a considerable period of time at the time their marriage was dissolved.
30. Even where alimony is ordered, it should be payable for a limited period, until it is reasonable to expect the weaker spouse to have regained his/her footing. It cannot be a lifelong blank cheque or a golden parachute to a charmed life of gilded living without responsibility.
31. Thus, in this case, it is my view that, since the appellant left her previous employment, maintenance of 2 years would be sufficient to enable her to secure alternative employment or to start a business that would generate some income. Noting that maintenance of children is subject to separate proceedings, and that the first child lives with the respondent, the sum proposed by the respondent would appear to me to be reasonable, fair and just.
32. In the circumstances, I find and hold that the learned magistrate erred in not making a determination on all issues raised. He erred in designating the respondent’s proposal as an agreement when it was not, and in failing to determine the alimony issue. This court is entitled to disturb his Judgement in that regard.
33. In the circumstances, I dismiss the appeal and allow the cross appeal. I order that the Respondent pay the appellant Euros 24,000/- in 24 equal instalments of Euros 1,000/- each commencing on 5th July 2026, and payable on the 5th day of the subsequent month, until the said sum is paid in full.
34. Parties shall bear their own costs of the appeal and the court below.
35. It is so ordered.
Dated and signed in Nairobi, this 22nd day of June 2026.
2. The couple’s marriage was blessed with 2 issues born in 2008 and 2013. From the proceedings of the court below, it is evident that the appellant and the respondent have not lived together since 2015.
3. The respondent filed a petition for the dissolution of the marriage. On her part, the appellant cross-appealed for divorce on account that the respondent had been in an open adulterous relationship with other women and that two of such relationships resulted in the births of children out of wedlock.
4. The court below, after hearing the parties, delivered a terse judgment in which it found that the couple were unlikely to resume their “spousal duties given their extended separation”. The court then made the following observation, which directly led to this appeal:
“Secondly, they have already reached an agreement on the arrangement for raising their children, which clearly indicates their unwillingness to reconcile. The first child who feels mistreated by the respondent has been ordered to live with the father.
The third issue is the existence of a maintenance agreement which the respondent has requested to be enforced, and which the petitioner has agreed to honour within 2 years…”
5. The appellant’s appeal deprecates the decision of the court on the ground that it neglected to decide all the issues that were before it. The Respondent, in an interesting turn of events, agrees that the court ought to have pronounced itself on the issue of alimony and, in a similar vein, impugns the decision of the learned magistrate on that ground.
6. The appellants and the respondent aren’t trying to preserve a marriage which they both consider beyond salvage. What this court is called upon to do is to determine a single issue; to wit, the quantum of alimony that the respondent ought to pay. It is the view of the appellant that the respondent ought to pay her Euros 4,000 per month, while the respondent proposes to pay Euros 24,000 in full and final settlement of his alimony obligations over a 2-year period.
7. This court issued directions on 3rd April 2025 regarding the manner in which the appeal and the cross appeal would be canvassed. The parties were directed to file and exchange written submissions. Given the nature of the matter, the parties’ counsel did not highlight their submissions and left it to this court to consider the submissions and deliver the judgment thereafter.
8. I must note that the hearing in the court below was by way of viva voce evidence. The respondent (then the petitioner) and the appellant then the respondent) testified and were cross-examined. That being the case, the court below had the benefit of hearing evidence first and of observing the demeanour of the witnesses, unlike this court.
9. This is the first appeal. The duty of the first appellate Court was settled in the case of Selle & another v Associated Motor Board Company Ltd & others (1968) EA 123, where the Court stated that:
“…An appeal to this Court from the trial by the High Court is by way of a retrial, and the principles upon which the Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind it had neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally…”
10. Similarly, in the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased) [2016] KEHC 4186 (KLR), the court stated that:
“8. The appeal to this court is a first appeal. It is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348.
9. It was further held in the case of Hahn v Singh (1985)KLR 716 that the appellate court will hardly interfere with the conclusions made by a trial court after weighing the credibility of the witnesses in cases where there is a conflict of primary facts between witnesses and where the credibility of the witness is crucial.”
11. Based on the foregoing, I will give due regard to the findings of the court below. Having said that, the appeal is on two issues:
i Whether the court erred by not considering all issues put before it by the parties; and
ii If so, what would be the applicable quantum of alimony in this case?
12. I must hasten to add that payment of alimony isn’t in dispute, as the respondent has expressed a willingness to pay what he considers a fair amount.
13. I will now set out the précis of the parties' submissions. The appellant's submissions are dated 9th June 2025. The appellant identified the issues for determination as follows:
1. Whether the lower court made a determination on the amount of spousal maintenance to be paid.
2. How much should be awarded to the appellant as spousal maintenance?
14. The appellant’s counsel submitted that the court below failed to make a determination regarding the issue of spousal maintenance. The failure, it was urged, amounts to breach of section 77 of the Marriage Act, 2014, “which vests the court with jurisdiction to make orders for maintenance during and after dissolution of marriage.”
15. On the second issue, it was urged that Euros 4000 would be sufficient to enable the appellant to maintain the lifestyle she was used to during the marriage. It was urged that the lump sum of Euros 24,000 would be grossly insufficient to meet her post-divorce living expenses, “having been accustomed to a much higher standard of living during the marriage.”
16. The basis for the said request was that the appellant stopped working upon getting married and that she sacrificed her career progression in favour of their family. Counsel contended that spousal support was premised on fairness. It was contended that, having been out of work for a long period of time, it would be difficult for the appellant to get employed again.
17. On his part, the respondent’s counsel filed written submissions dated 22nd July 2025, in which it was contended that the appellant failed to file an affidavit of means, a failure that was fatal to her claim. The respondent’s counsel relied on the case of PKM v RPM [2017] eKLR.
18. It was denied that the appellant’s rights under Article 45(3) of the Constitution had been violated. Counsel contended that the mere fact that her prayers were denied does not mean that there had been a constitutional violation. Counsel submitted that the court below did not err in failing to adjudicate between competing claims. She denied that there had been a miscarriage of justice.
19. Regarding the cross appeal, counsel submitted that the court should have rendered itself on the issue of spousal maintenance. Reliance was placed on the decision of the Court of Appeal in VVA v HSP [2020] KECA 760 (KLR). Counsel submitted that the court below should have determined whether proposed spousal maintenance was payable or not and that it erred in failing to do so. That being so, it was urged that the court should either accept the proposal that the respondent pays Euros 24,000/- as alimony or outrightly reject it.
20. I have considered the record of appeal and the parties' submissions. I have already identified what I consider to be the issues in this matter and have excerpted the impugned judgment.
21. In my view, the court below ought to have determined all the issues before it; the issue of alimony was live before the Court. I am guided by the Court of Appeal’s decision in VVA v HSP [2020] KECA 760, where it was stated that:
“As already stated above, the Judge failed to pronounce himself on prayer 3 of the application dated 19th May, 2017, based on the erroneous assumption that it is prayer 3 of the application of 19th July, 2017 that had lapsed with the withdrawal of the appeal. This, in our view, was a wrong exercise of discretion, based on a misapprehension and misconception of the correct facts that the Judge ought to have considered and appreciated in the determination of that prayer. We find merit in this appeal.”
22. This Court is therefore justified in disturbing the decision of the Court below on the said ground.
23. Article 45 (3) states that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage”.
24. Although section 77 of the Marriage Act provides that the court may order a person to pay maintenance to an ex-spouse “when granting or after granting a decree of separation or divorce,” it is my view that the provision should be read in a manner that reflects the equality ethos of our transformative 2010 Constitution; that is, alimony should be ordered only in rare, very clear cases where justice so demands. Alimony, in my view, is a limitation of the presumption of equality. When payable, it should be intended to assuage real hardship that a financially weaker spouse may face upon the termination of the marriage, and should be for such a period as would allow the weaker spouse to get back on his/her own feet and fend for himself/herself. Permanent alimony may be ordered only in limited cases where a financially weaker spouse can no longer be expected to cater for himself/herself due to age, physical infirmity, or similar conditions. Alimony isn’t a hammock for the financially irresponsible or indulgent spouse to live off the former spouse permanently.
25. It is thus the duty of the spouse seeking the provision of alimony to show that his/her condition is such that it is necessary for a maintenance order to be made. The only way that a Court would know what the fortunes of the spouses are or their respective abilities is if affidavits of means are filed by the disputants.
26. The Court of Appeal, while considering the issue of alimony in the case of PKM v RPM [2017]eKLR, expressed itself as follows:-
“We venture to suggest that whenever a court is faced with an application for maintenance, whether seeking interim relief or upon dissolution of marriage, it must direct the parties to furnish the court with comprehensive information by way of affidavit relating to their respective financial circumstances. The affidavits should detail the assets, income, expenditure and liabilities of each party over the relevant period and should be supported by necessary evidence. If there is a contest over such information, an inquiry or investigation must then be scheduled where the parties are 2 subjected to cross-examination on their affidavits in order for the court to make an informed decision.”
27. In the case of MEK v GLM [2018] KECA 543, it was held that:
“In the absence of any statutory guidelines of specific factors to be taken into account in exercising discretion to grant maintenance to a spouse, the courts will no doubt consider all the circumstances of the case and exercise the discretion judicially. The specific factors stipulated in section 25(2) of the repealed Matrimonial Causes Act, that is, the fortune of the spouses, the ability of the spouse and the conduct of the parties, will continue to be relevant. Other relevant factors include the income of the respective spouses, financial needs, obligations and responsibilities present and in future and the duration of the marriage.”
28. In this case, the appellant did not file an affidavit of means. There could not, therefore, have been any basis for awarding her Euros 4,000 per month, which amount, in any case, appears excessive.
29. My view is that the appellant’s contention that she was used to a higher standard of living is debatable, as the parties had lived apart for a considerable period of time at the time their marriage was dissolved.
30. Even where alimony is ordered, it should be payable for a limited period, until it is reasonable to expect the weaker spouse to have regained his/her footing. It cannot be a lifelong blank cheque or a golden parachute to a charmed life of gilded living without responsibility.
31. Thus, in this case, it is my view that, since the appellant left her previous employment, maintenance of 2 years would be sufficient to enable her to secure alternative employment or to start a business that would generate some income. Noting that maintenance of children is subject to separate proceedings, and that the first child lives with the respondent, the sum proposed by the respondent would appear to me to be reasonable, fair and just.
32. In the circumstances, I find and hold that the learned magistrate erred in not making a determination on all issues raised. He erred in designating the respondent’s proposal as an agreement when it was not, and in failing to determine the alimony issue. This court is entitled to disturb his Judgement in that regard.
33. In the circumstances, I dismiss the appeal and allow the cross appeal. I order that the Respondent pay the appellant Euros 24,000/- in 24 equal instalments of Euros 1,000/- each commencing on 5th July 2026, and payable on the 5th day of the subsequent month, until the said sum is paid in full.
34. Parties shall bear their own costs of the appeal and the court below.
35. It is so ordered.
Dated and signed in Nairobi, this 22nd day of June 2026.