AA v HSS [2021] KEHC 55 (KLR)

AA v HSS (Family Appeal 43 of 2017) [2021] KEHC 55 (KLR) (31 August 2021) (Judgment)

AA v HSS [2021] eKLR

Neutral citation: [2021] KEHC 55 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal 43 of 2017

JN Onyiego, J

August 31, 2021

Between

AA

Appellant

and

HSS

Respondent

(Being an appeal from the judgment of Hon.Sheikh Mwidadi Salim delivered on 16th November 2017 in Mombasa Kadhi’s Court Succession Case Number 2014 of 2016)

Factors that courts consider in awarding payment of alimony and/or maintenance under Islamic Law.

Reported by Ribia John

Islamic Law– family law – divorce – mutah (dowry, if outstanding, payment of alimony or maintenance) - purpose of - what were the factors that the court considered in awarding mutah under Islamic Law - Quran chapter 2 verse 236 and 241. Islamic Law– family law – divorce – eddah (maintenance of a divorced wife for three months after divorce under the care of her former husband to ensure that the divorced woman did not remarry another person while pregnant from her former husband or somebody else) - purpose of - what were the factors that the court considered in awarding edda under Islamic Law - Surah al Talaq 6 and 7.

Brief facts The appellant and respondent wedded in February 2015. The respondent filed for divorce on grounds that she had been mistreated. She claimed that she was the sole provider of the family and that the appellant had refused to work. The respondent claimed that she was advised by the mother-in-law to file for divorce; that when she had visited her mother for a few days, she received a call from the mother-in-law who informed her not to go back to her husband. On the same day, her husband (appellant) gave her three talakas thus divorcing her on September 5, 2015, without any solid reason. She, therefore, filed a divorce petition at the Kadhi’s Court where she claimed and was awarded mutah (dowry, if outstanding, payment of alimony or maintenance) and eddah (maintenance of a divorced wife for three months after divorce under the care of her former husband to ensure that the divorced woman did not remarry another person while pregnant from her former husband or somebody else).Aggrieved the appellant filed the instant appeal on grounds that the Kadhi’s Court erred in finding that he was to blame for the divorce, that the court erred in awarding the respondent mutah and eddah that was inordinately high.

Issues

What were the factors that courts considered in awarding mutah and eddah under Islamic Law?

Whether the Kadhi’s Court erred in holding that the appellant was responsible for the divorce?

Held

It was the appellant who decided out of lack of patience to divorce the respondent. The appellant in his letter of divorce remarked that the reasons for the divorce were best known to himself. The mother even cautioned him to think twice. The appellant admitted that the respondent and her mother tried to reach him to resolve any differences but he hang-up on them. The respondent even sent him a message requesting his decision. Both the appellant and the mother admitted that the appellant had told the respondent never to go back to their matrimonial home where they were staying hence the request by the respondent to the appellant to reconsider his decision.

The conduct of the respondent and her mother showed that they wanted the respondent to go back after attending healing prayers before a Sheikfollowing her sickness. When she left her matrimonial home, it was with the knowledge and consent of the parents including the mother-in-law for the respondent to go to her mother’s home to seek healing prayers before a Kadhi.

The respondent did not run away from her matrimonial home. The appellant and his mother admitted taking the respondent to somebody known as Kanamai for treatment.  It was the Kanamai who told them that the respondent had some jini in her stomach. The court did not find any reason to fault the respondent for the divorce. The appellant and his mother were not happy with the respondent’s sickness as well her innocence or not understanding the role of a married woman. The reasons for the divorce were therefore caused by the appellant himself and he was to blame for its occurrence. There was no good reason advanced to justify the divorce. The appellant was the person to blame as correctly held by the Kadhi’s Court.

Under Islamic law, divorce proceedings attracted certain consequences sanctioned by Islamic law.  Among such consequences was the payment of dowry, if outstanding, payment of alimony or maintenance otherwise known as mutah under Islamic  Law and eddah, a three months period  a divorced woman was supposed to observe after divorce under the care of her former husband to ensure that the divorced woman did not remarry another person while pregnant from her former husband or somebody else.

The requirement for an award of mutah was as old as the Islamic religion and it was expressed in the holy book of the Quran in chapter 2 (Al Baqara )  verse 236. Further, chapter 2 verse 241, provided that, for divorced women, maintenance should be provided on a reasonable scale and that it was a duty on the righteous. The objective ofmutah payment as could be discerned from the two verses above quoted was for a man to give some token of appreciation according to his financial ability to enable the divorced woman to re-start, reorganize and continue with life.  It was meant to restore some comfort and stability to a woman divorced so that she did not become destitute.

It was an obligation bestowed on a man to give something to maintain a woman to re-organize her life again without much hustle. However, the holy book recognized that people had different capabilities hence even the poor were catered for.  However, mutah could not be measured with mathematical precision. It depended on ones’ ability hence the award had to be reasonable before the eyes of an ordinary person

The Quran chapter 2 verse 236 imposed a duty upon a man divorcing a woman to honour his obligation by gifting her, especially where he was responsible for the divorce. The only benefit a divorcing man had was to establish his financial status by filing an affidavit of means to justify what was reasonable to pay as mutah.

He who alleged had to prove. The appellant ought to have placed evidence that he was on attachment or an affidavit of means. Withholding such crucial information meant that an inference against him for material non-disclosure could be made.  He was therefore under obligation to pay mutah. Although the Quran did not make mutah payment mandatory, it was an obligation which over time had evolved through judicial precedents to be binding upon a man to maintain his divorced wife more particularly if he was to blame for the divorce.

There was no fixed amount payable as mutah under the Quran. The Quran fixed it at 30 dinar, or double the dowry payable. The court doubted whether the value of 30 dinar when the Quran was written would be relevant today. There were no fixed parameters within which the court would determine the amount of mutah payable.

An appellate court would ordinarily not interfere with the trial court’s discretion especially in the assessment of damages unless it was inordinately high or low as to represent an entirely erroneous evaluation or acted on wrong principles. A sum of Kshs 200,00 was reasonable in the circumstances hence there was no reasonable ground to interfere with it.

The obligation of eddah (maintenance costs during the three months period after the divorce) was bestowed upon the divorcing husband by Surah al Talaq6 and 7 which provided that a divorced woman was to be lodged(housed) by the divorcing man where the man lodged out of his means without oppressing her and if pregnant until she delivered. The amount payable per month was to be looked at and assessed from the lifestyle the divorced woman was living before the divorce. In the instant case, both parties admitted that they were relatively not well-to-do persons.

Taking into account the factual practical ordinary living expenses of a poor home, how much of breakfast, lunch, or dinner would anybody take? In the instant case, Kshs. 400 distribution in respect to the three categories of food requirements, would amount to breakfast Kshs. 100, lunch and supper each Kshs. 150. That was the cheapest meal even any casual worker could dare attempt to survive on. A sum of Kshs. 400 was extremely reasonable and there was no need to interfere with it.

Appeal dismissed.

Orders Costs to the respondent.

Citations CasesEast Africa; Abubakar, Mohamed AL Amin v Firdaus SiwaSamo Civil Appeal No 48 of 2018; [2019] eKLR — (Cited)

Butt v Khan [1982-88] 1 KAR 1 — (Cited)

Sella v associated Motor Boat Company [1968] EA 123 – (Explained)

United kingdom;Butler v Butler [2016] EWHC 1793 (Ch) - (Mentioned)StatutesNone referred toAdvocatesNone mentioned

Judgment

1. This is an appeal arising from the judgment and decree of the honorable Kadhi Shikh Muidai Salim delivered on 16th November, 2017. Aggrieved by the said decision, the appellant moved to this court through a memorandum of appeal dated 18th December, 2017 citing four grounds of appeal as follows;(1)That the learned Kadhi erred in law and wrongly applied Islamic principles in awarding Muta to the petitioner;(2)That the learned Kadhi erred in law and fact and misguided the court in assessing Muta compensation;(3)That the learned Kadhi erred in law and fact in ordering payment of Eddah maintenance to Naashiza;(4)That the learned Kadhi erred in law and fact and failed to properly examine the evidence on record hence awarded muta and Edadd maintenance.

2. This is a first appeal. As a first appellate court, this court is under an obligation to re-evaluate, re-examine and re-consider the evidence tendered before the trial court and arrive at an independent conclusion , finding and or determination while bearing in mind that the trial court had the opportunity of listening and seeing the witnesses hence the advantage of assessing their demeanor.

3. In appreciating the above principles, I am guided by the holding in the case of Sella v associated Motor Boat Company ( 1968)EA 123 page 260where the court stated that;“…an appeal to this court from a trial by the high court is by way of retrial and the principles upon which this court acts in such appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular, this court is not bound necessarily to follow the Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally”

4. Before considering the appeal herein, a brief factual background of this matter will suffice. By a divorce petition dated 10th October, 2006 HSS petitioned for divorce against her husband AA (hereinafter the appellant) seeking;(a)Dissolution of their marriage and the divorce written and dated by the respondent (appellant) on 5th September, 2016 be confirmed.(b)The respondent (appellant) be condemned to pay the petitioner the full set of furniture and one full set of gold as promised by him during marriage.(c)The respondent( appellant ) to pay maintenance ( Eddah) for the petitioner for a period of her 3 month’s Eddah at ksh 60,000 per month thereby making it a total of kshs180,000 for the three months’ Eddah beginning September 2016. (d)The respondent be condemned to pay the petitioner lamp sum compensation of ksh 2,000,000 for spoiling the petitioner’s youth and then decided to divorce her all over sudden without any explanation despite the petitioner’s patience with him and his parents and her wanting to stay and save her young marriage in her tender age but to no avail.(e)the respondent be compelled to produce and issue the petitioner with her marriage certificate which is still at the respondent’s house.(f)the respondent be compelled to produce and issue the petitioner with all her personal items /belonging to wit; her clothes, hand bags , shoes, perfumes ,and all the petitioner’s wedding presents.(g)That the respondent be condemned to bear the costs of this cause.(h)Pay further or other relief that this honorable court may deem just and fit to grant to the petitioner in the circumstances.

5. During the hearing, the petitioner told the court that she got introduced to the appellant (defendant) sometime 2014 when negotiation over their marriage was conducted. That part of the marriage agreement was that the appellant was to pay kshs 35,000 as dowry and a full set of gold part of which was honored on 28th February, 2015. That when she got married, 2015, she moved into the appellant’s family residence where they stayed together .She claimed that she was denied a chance to choose a room she could have wished to occupy.

6. She further stated that when she asked her husband to look for some work to do, he declined thus forcing her to provide for the family using her money. She claimed that the appellant’s family never respected her. That the mother in law could stay in her (petitioner’s) room watching TV until late hours in the night and that she was asked to stop communicating with her mother permanently. That her lamentation to the appellant who by then was working in his father’s workshop fell on deaf ears. She claimed that the family resorted to taking her to witchdoctors on grounds that she was possessed with evil spirits. That when she informed her mother, the mother promised to take her to a Sheik for prayers.

7. She alleged that it was the mother in law who told her to seek for divorce. That when she went to visit her mother, she remained there for some days. On 5th September, 2016 she received a call from the mother in law who informed her not to go back to her husband. That on the same day, her husband (appellant) gave her 3 Talakas thus divorcing her on 5th September, 2015 without any solid reason. She therefore claimed muta compensation, Eddah and a set of gold and furniture which the appellant had promised but failed to honor.

8. On her part, Pw1 NH mother to the petitioner corroborated her daughter’s testimony acknowledging that Ksh 35,000 was paid for her daughter as dowry. She claimed that her daughter was severally taken to witch doctors by her in laws and the appellant a conduct she did not approve. She also stated that, she was the one who requested for her daughter to be released to her so that she could take her to a sheikh for prayers.

9. It was while at her home that the appellant’s mother called her thus informing her that the respondent should not go back to her matrimonial home. That on the same day, she heard the appellant give her daughter three Talakas without giving her any reason.

10. Pw2 one Samira a friend to both families confirmed that she was present when the marriage negotiations were held and an agreement on payment of kshs 35,00 dowry, a set of gold and furniture arrived at;

11. In his defence, the appellant denied allegations of mistreating his wife. He claimed that three months after their marriage, the respondent neglected her duties and refused to give him his rights. That he stopped the respondent from working after she started arriving home late at night. He disputed the claim that he was the one who chased her away and that he used to take her to witchdoctors.

12. He asserted that it was her mother who requested to take her away to educate her on marital issues. That when he reached Eldoret where they had relocated to from Mombasa, he called the respondent and informed her not to go back there. That when the respondent’s mother called him severally on phone, he hung up on her. That later the respondent sent him a message indicating that she was waiting for his decision. That he failed to be patient and that he gave her divorce on phone. He denied promising to pay the respondent anything other than dowry payment which he did.

13. Dw1 the appellant’s mother corroborated the appellant’s testimony to the extent that she was the one who paid dowry of kshs 35,000 and that nothing else was promised except for a set of gold which the appellant promised to buy after getting a job. She admitted that she used to spend some time watching TV in the respondent’s bedroom. She blamed the respondent’s mother for the strained relationship between the appellant and the respondent. She claimed that the respondent was suffering from [Particulars Withheld] a sickness that could force her to shout loudly while punching the wall. That when they went to someone known as Kanamai, they were told that the respondent had a jini in her womb.

14. In his judgment delivered non 16th November, 2017 and decree extracted on 19th December, 2017 the hon. Kadhi found and directed that;(1)Parties are entitled to issue of divorce certificate(2)The petitioner was entitled to dowry of 35,000(3)The respondent had the right to revoke delivery of a set of gold.(4)All personal belongings for the petitioner and all wedding presents be surrendered to the petitioner within 30 days.(5)The respondent had to pay kshs 400 per day for the period of 90 days with effect from 12th October 2017(6)That the respondent is obliged to pay the petitioner her 2,000,000 for her Muta(7)That no order as to costs and maintenance.

15. It is against the above orders and decree that the instant appeal was filed. When the matter came up for directions, parties’ respective counsel agreed to file submissions which they did and thereafter substantively argued the appeal in open court.

Appellant’s Submissions. 16. Through the firm of AA Muzrui and Co Advocates, the appellant filed his submissions dated 5th February, 2019. Mr Mwadzogo who highlighted on the submissions condensed the grounds of appeal into two. He specifically focused on the the principles governing payment of mutah and Eddah which he claimed that the respondent was not entitled to.

17. It was counsel’s submission that the learned Kadhi applied wrong Islamic law principles in awarding mutah to the petitioner. That mutah is an Arabic word meaning things that may delight the heart and can be put into good use. Counsel further submitted that according to Kamus Devan 3rd Edition year 2000, the word Mutah is defined as a gift (payment) given to a divorced wife but not compulsory(wajib). Learned counsel further referred the court to a text in the Quran Surah 1: Verse 236 which provides- “There is no blame upon you if you divorce women you have not touched or specified for them an obligation. But give them a gift of compensation- the wealthy according to his capability and the poor according to his capability - a provision according to what is acceptable, a duty upon the doers of good”

18. That verse 241 goes further to advice divorced women that, it is a promise to what is acceptable and a duty upon the righteous.

19. It was contended that great Islamic jurists are in agreement that grounds upon which Mutah is compulsory (Wajib) to be given by a husband to ex -wife are follows;(1)If the wife is divorced before sexual intercourse takes place and the dowry (mahar) was not mentioned during the marriage ceremony (akad nikah).(2)The wife decreed to be separated from the husband because of the husband accusing the wife of adultery.(3)The divorce happens after or before a sexual intercourse takes place with the condition that the dowry was not mentioned in the marriage ceremony (akad nikah)

20. Counsel faulted learned Kadhi for arriving at the conclusion that the appellant had no reason to divorce the respondent hence careless divorce a principle which is not supported in Islamic law. Mr Mwadzogo asserted that there were challenges in the couple’s marriage hence the reason for divorce. Learned counsel contended that the respondent’s refusal to have physical or emotional attachment to the appellant was a factor that contributed to their divorce and that it was the respondent’s parents who forced the respondent (petitioner) to ask the appellant for divorce.

21. Counsel submitted that both parents to the parties contributed to the divorce due to their superstitious beliefs against each other hence a ground for divorce. That where there are allegations of neglect of a Nashiza no mutah is payable.

22. Mr Mwadzogo contended that the principles governing assessment of mutah are not codified in Kenyan legal system hence reliance on the Islamic scholars and the holy Quran. In counsel’s view, Surah1 verse 236 of the holy Quran does not make mutah compulsory hence the award of Kshs 200,000 was not based on any known principle of law or religion.

23. Touching on the issue of Eddah awarded at kshs 400 per day for 90 days, Mr Mwadzogo submitted that there was no basis nor justification laid out on how that figure was arrived at and why the same was awarded. Counsel opined that Eddah under Islamic law is paid depending on one’s ability. That there was no affidavit of means filed to prove the appellant’s financial or economic status or ability before making the award.

24. According to Mr Mwadzogo, Mutah compensation stands at 30 dinar or should not exceed half of the dowry payable or paid.

25. Further, that the order by the Kadhi for payment of a lady who deserted her matrimonial home in the pretext of going to her parents for traditional healing never to return (Naashiza) disentitles such women from Eddah compensation. That if Eddah is not observed in the former husband’s side the same is not payable.

Respondent’s submissions. 26. On her part, the respondent filed her submissions on 20th February, 2019 through the firm of Khalid Salim who basically supported the Hon Kadhi’s reasoning and generally his entire judgment. M/s Nafula relying on the holy Quran Surah 1:236/a verse 236 quoted above submitted that the award of mutah was appropriate considering that there was no good reason for divorcing the respondent. Counsel made reference to the appellant’s response to the petition where he allegedly claimed that he divorced the respondent due to pressure from his mother. Further, that it was the appellant who forcefully took the respondent to witch doctors.

27. Concerning the award of Eddah to the alleged Nashiza, it was submitted that the respondent did observe 3 months period after divorce before re-marrying. That the respondent was not a disobedient nor a rebellious woman otherwise known as Nashiza hence entitled to Eddah as she properly observed 3 months after being chased out of their matrimonial home. Counsel contended that the award made was reasonable in the circumstances. That there was no proof of disobedience nor rebellious acts by the respondent to justify the label that she was anashiza.

28. As to financial inability of the appellant on grounds that he was a student, M/s Nafula submitted that it was one of the reasons that made the court lower the claim from Kshs 2,000,000 to kshs 200,000. Ms Nafula referred the court to the appellant’s submissions before the lower court (See page 29 of the Memorandum of appeal) where he proposed to pay kshs 10,000 as Eddah award per month instead of Kshs 60,000. According to Nafula, the only difference between what the court awarded and the appellant‘s offer to pay was only six thousand sum she submitted was reasonable.

Legal opinion by the chief Kadhi sitting with the Judge. 29. During the hearing, the Chief Kadhi sat with me in the open court as is required by law. In his legal opinion dated 5th May, 2012. Hon Al Muhdhar AS Hussein did a legal opinion on the disputed Islamic law principles and or position regarding the issues in controversy.

30. According to the Chief Kadhi, divorce in Islamic marriage has its consequences inter alia; entitlements due to a divorced woman among them; maintenance and Eddah maintenance, alimony (Mata’a) and unpaid dowry. Regarding maintenance, ( muta) Hon Kadhi referred to the Quran chapter 2 verse 236 which has been quoted above thus holding that upon divorcing a woman, a man is ordained to pay to the divorced woman a token according to his capability.

31. In his opinion, Hon Kadhi was of the view that the respondent herein was entitled to be taken care of before , during the marriage and after in accordance with the dictates of the quran chapter 65 verse 6 and 7. He concluded that the respondent was on the right cause during her marriage hence could not be blamed for the divorce. He therefore found that the lower court’s judgment cannot be faulted.

Determination. 32. I have considered the record of appeal herein, grounds of appeal and counsel’s submissions. As stated earlier, Mr Mwadzogo for the appellant addressed the court on two issues inter alia; whether the court acted properly in awarding mutah and Eddah to the respondent.

33. I will therefore address each issue separately. There is no dispute that there was a marriage conducted on 28th February, 2015 between the respondent and the appellant. It is also not in dispute that the two are no longer husband and wife after the appellant gave the respondent Talakathree times on phone a fact he admitted on his cross examination at page 13 of the proceeding ( page 74 of the record of appeal.) where he stated that;“That when I reached Edoret, I called H to not to come to Eldoret. her mother called me several times but I hung up the phone. Then H sent a message that she was waiting for my decision. I failed to be patient on that time and I gave her the divorce through phone.”

34. Further at page 1 of the proceedings (page 80 of the record of appeal ) Dw1 Farida Allan stated that;“I consulted my son to think twice before he decided to divorce her.”

35. According to the divorce letter dated 5th September, 2016 attached by the appellant among the list of documents for the respondent, he stated that he had divorced the respondent for reasons well known to himself.

36. The point of contention is who was responsible for the divorce. From the above listed paragraphs of the appellant’s testimony and that of his mother, it clear that it was the appellant who decided out of lack of patience to divorce the respondent. It is no wonder the appellant in his letter of divorce, he remarked that the reasons for the divorce were best known to himself. In fact, the mother (Dw1) even cautioned him to think twice. The appellant admitted that the respondent and her mother tried to reach him to resolve any could be differences but he hang up on them. The respondent even sent him a message requesting for his decision. Both the appellant and the mother (Dw1) admitted that the appellant had told the respondent never to go back to Eldoret where they were staying hence the request by the respondent to the appellant to reconsider his decision.

37. The conduct of the respondent and her mother shows that they wanted the respondent to go back after attending healing prayers before a sheik following her sickness. When she left her matrimonial home, it was with the knowledge and consent of the parents including the mother in law for the respondent to go to her mother’s home to seek healing prayers before a Kadhi. This fact was admitted by Dw 1 at page 79 of the record of appeal.

38. From this admission, it is crystal clear that she did not run away from her matrimonial home. The appellant and his mother (Dw1) admitted taking the respondent to somebody known as Kanamai for treatment. It was Kanamai who told them that the respondent had some jini in her stomach. What kind of a healer is this that could see a jini inside the stomach without any X-ray if not the hands of a witch doctor?

39. Having taken into account circumstances under which the respondent was given Talaka ( divorce ), I do not find any reason to fault her for the divorce. It is clear that the appellant and his mother were not happy with the respondent’s sickness as well her innocence or not understanding the role of a married woman. The reasons for the divorce were therefore caused by the appellant himself and he is to blame for its occurrence. I am in agreement with the learned Kadhi that there was no good reason advanced to justify the divorce. The appellant is the person to blame as correctly held by the hon court.

40. Having held as above, the key question is, is the respondent entitled to muta. As correctly stated by the chief Kadhi in his legal opinion, under Islamic law, divorce proceedings attract certain consequences sanctioned by Islamic law. Among such consequences is payment of dowry if outstanding , payment of alimony or maintenance otherwise known as Muta under Islamic Law and Eddah a three month’s period a divorced woman is supposed to observe after divorce under the care of her former husband to ensure that the divorced woman does not remarry another person while pregnant from her former husband or somebody else.

41. In the case of ZMDG vs SJ KUR Hon Judge Aroni had this to say about Mutah;” “Mutah means gratification. Muti’ al talaa or natafqal al mut’a is a payment by a husband to his wife upon divorce”

42. The requirement for an award of mutahis as old as the Islamic religion and it is expressed in the holy book of the Quran at chapter 2 (Al Baqara ) verse 236 which provides that;“there is no blame on you if you divorce women before consummation or the fixation of their the dowry; but bestow on them (Suitable gift), the wealthy according to his means, and the poor according to his means; a gift of a reasonable amount is due from those who wish to do the right they”

43. Further, chapter two verse 241, does to provide that, for divorced women, maintenance (should be provided) on a reasonable scale and that this is a duty on the righteous.

44. The objective of Mutah payment as can be discerned from the two verses above quoted is for a man to give some token of appreciation according to his financial ability to enable the divorced woman re-start , reorganize and continue with life. It is meant to re-store some comfort and stability to a woman divorced so that she does not become destitute.

45. It is therefore an obligation bestowed on a man to give something to maintain a woman to re-organize her life again without much hustle. However, the holy book is kind enough to the extent that it recognizes that people have different capabilities hence even the poor are catered for. However, mutah cannot be measured with mathematical precision. It depends on ones’ ability hence the award must be reasonable before the eyes of an ordinary person.

46. In this case, the quran chapter 2 verse 236 imposes a duty upon a man divorcing a woman to honour his obligation by gifting her especially where he is responsible for the divorce. The only benefit a divorcing man has is to establish his financial status in this case by filing an affidavit of means to justify what is reasonable to pay as mutah.

47. Mr Mwadzogo urged that the respondent did not file an affidavit of means to show that the appellant was able. That is not for the respondent to do but the appellant. The appellant applied for 2 million but the court reduced it to kshs200, 000 on grounds that the appellant had no permanent job.

48. In his evidence, the appellant said he was a student at [Particulars Withheld] university and that he was on attachment with some company. The respondent stated that, the appellant was no longer a student but working with some construction company at [Particulars Withheld] hotel .The appellant confirmed that he was attached to [Particulars Withheld] Construction company which had some contract work at [Particulars Withheld].

49. When pushed on cross examination to prove that he was on attachment and not working, he was reluctant. It is trite that he who alleges must prove. The appellant ought to have placed evidence that he was on attachment or an affidavit of means. Withholding such crucial information will be inferred against him for material non- disclosure. He was therefore under obligation to pay muta. Although the quran does not make mutah payment mandatory, it is an obligation which over time has evolved through judicial precedents to be binding upon a man to maintain his divorced wife more particularly if he is to blame for the divorce.

50. Is the amount of Kshs 200,000 awarded reasonable? There is no fixed amount payable as mutah under the quran. Although Mr Mwadzogo submitted that the Quran fixes it at 30 dinar, or double the dowry payable, I doubt whether the value of 30 dinar when the Quran was written would be relevant today. As stated by my sister Mwangi J in Civil appeal No 48/2018 between Abubakar Mohamed AL Amin vs Firdaus SiwaSamo ( UR)the amount of muta awarded is at the discretion of the court. There are no fixed parameters within which the court should determine the mount of muta payable.

51. Considering the amount awarded by the Hon. Kadhi, against the financial position of the appellant, whom I hold to be working on a temporary basis as an Engineer in some construction company, I find a sum of Kshs 200,00 reasonable in the circumstances hence no reasonable ground to interfere with it.

52. It is trite law that, an appellate court will ordinarily not interfere with the trial court’s discretion especially in assessment of damages unless it is inordinately high or low as to represent an entirely erroneous evaluation or acted on wrong principles See Butler Vs butler (1984) K LR 225 and Butt Vs Khan.

53. Regarding the question whether the respondent was a nashiza, there was no evidence to prove that the respondent was rebellious or disobedient.

54. I will now turn to the award of Eddah which as I said is maintenance costs during the three months period after the divorce. This obligation is bestowed upon the divorcing husband by Surah al Talaq 6 and 7 which provides that a divorced woman be lodged(housed) by the divorcing man where the man lodges out of his means without oppressing her and if pregnant until she delivers.

55. The appellant opposed the award based on the ground that, it was not payable as the respondent was responsible for the divorce. Having held that the appellant was responsible for the divorce after warning the respondent not to dare go back to her matrimonial home, the observance of three months period practically could not be possible in the appellant’s house. Three months having lapsed without any proof that the respondent had any pregnancy from her previous marriage or any other source, it follows that she is entitled to the award.

56. In any event, the appellant admitted that it was payable save for the amount of kshs 60,000 award which he claimed was higher. In his submissions at page 29 of the record of appeal paragraph 10, the appellant proposed to pay kshs10,000 per month translating to kshs30,000 for three months. The court instead reduced it from kshs 60,000 for three months to kshs12,000 per month making it Kshs36,000. I wish to reproduce what he stated;“On the issue of Eddah maintenance the defendant has said he is ready to pay the same but not at the rate of Ksh 60,000 as demanded by the defendant. The defendant stated that he can manage to pay the rate of Ksh 10,000 every month which is reasonable”

57. With this admission, one would ask whether the 400 awarded per day is reasonable or not. In my view, the amount payable per month should be looked at and assessed from the life style the divorced woman was living before the divorce. In this case both parties admitted that they are relatively not well to do persons. Taking into account the factual practical ordinary life expenses of a poor home, how much of breakfast, lunch or dinner will anybody take? In this case, Kshs 400 distribution in respect to the three categories of food requirements, it will amount to breakfast kshs100, lunch and supper each kshs150. This is the cheapest meal even for any casual worker can dare attempt to survive on. With due respect to learned counsel Mr Mwadaogo, a sum of 400 is extremely reasonable hence I do not need to interfere with it.

58. In the circumstances and considering all facts of theses case, the pleadings herein, testimonies by all witnesses and having gone through the hon Kadhi’s judgment, I am satisfied that the court did take into account all relevant factors and evidence before the court. I find the award a just decision which I hereby uphold.

59. Accordingly, the appeal herein is dismissed with costs to the respondent. Right of appeal explained to the parties.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF AUGUST, 2021. J. N.ONYIEGOJUDGE