Judge says the July 2024 order to pay alimony was erroneous as the estranged wife described herself as a “businesswoman and professional tailor”, and is therefore not destitute.
The High Court has set aside a magistrate's order directing a man to pay his estranged wife Sh50,000 monthly maintenance, citing insufficient evidence to prove she was destitute.
In a key matrimonial ruling, Justice Helene Namisi ruled that spousal maintenance among separated or divorced couples was not a legal right or an entitlement to be claimed.
The court held that the claim must be supported by evidence through an affidavit of means to show the need for financial support from the other spouse.
“It (maintenance) is a remedy intended to provide a safety net for a spouse who is financially disadvantaged by the marital breakdown and is unable, for valid reasons, to support themselves. The burden of proof lies squarely on the applicant to demonstrate the need for maintenance,” said the judge.
“This requires such an applicant to place before the court sufficient material to prove their financial position including their income, assets, expenses and liabilities.”
Allowing an appeal filed by Mr DMM challenging the magistrate's July 2024 order for payment of alimony to his wife, Ms MW, the judge held that the directive was erroneous as the woman had described herself as a “businesswoman and professional tailor” in her testimony during divorce proceedings.
“In her testimony, the respondent (Ms MW) indicated that she is a businesswoman. On cross examination, she added that she is a tailor by profession. The term ‘destitute’ connotes a state of utter penury, a complete lack of means for subsistence,” said Justice Namisi.
“A person who runs a business and possesses a professional skill, however modest their income may be, cannot be described as destitute.”
Further, the court said that beyond her oral plea that she had no help, Ms MW placed no evidence before the trial court to substantiate her need for maintenance.
“The record is entirely bereft of the financial particulars of her business and expenses necessary to justify an award of Sh50,000 per month. The respondent failed to discharge her burden of proving her need for alimony,” said Justice Namisi.
The man filed for divorce, saying that the marriage had irretrievably broken down and that the differences were irreconcilable.
The upkeep order stemmed from a divorce case filed by the man. He said that the marriage had irretrievably broken down and that the differences were irreconcilable.
However, Ms MW opposed the petition, denying the alleged grounds and stating that although their marriage had been rocked with problems, the man had not moved out of their matrimonial home, as alleged.
She told the trial court that their differences were common disputes between married couples. She urged the court to dismiss the petition. They married in August 2000.
As the case proceeded, the court directed the parties to file their respective affidavits of means but Mr DMM protested saying that the issue of maintenance had not been raised in the pleadings.
The trial court noted that although the aspect of alimony was not raised by any of the parties, the wife appeared destitute and homeless due to the husband.
Based on section 77 of the Marriage Act, the trial court noted that the husband had neglected the wife and entered judgment allowing the divorce but also ordered him to be paying her alimony of the said amount every 5th day of the month.
The legal provision gives the court the power to order payment of maintenance to a spouse or former spouse in situations of desertion or neglect, with the court considering factors like the standard of living during the marriage and each party's income when determining the amount and duration of maintenance.
Mr DMM was aggrieved with the order and his appeal was premised on an argument that the trial court acted outside its jurisdiction by granting a relief that was never pleaded.
In the ruling, the judge said the power of the court to order for alimony should be exercised judiciously, based on legal evidence and guided by established legal principles. The court restated the general principle of litigation that parties are bound by their pleadings.
“It is my considered view that the finding of the trial court that the respondent was destitute is a palpable misapprehension of the evidence. This finding is in direct and irreconcilable contradiction with the respondent’s own sworn testimony,” said Justice Namisi.
