K O AL-A v M S M [2017] KEHC 5573 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

DIVORCE CAUSE NO. 1 OF 1995

K O AL-A...................................................... PETITIONER/RESPONDENT

VERSUS

M S M……………………............………… RESPONDENT/APPLICANT

RULING

1. Before this Court for determination is an Application dated 11. 10. 16 by M S M the Respondent/Applicant herein seeking:

1. the discharge of the orders made on 16. 11. 98 directing the Respondent/Applicant to deposit the sum of Kshs. 1,200,000/= in a joint account of the Petitioner/Respondent’s and the Respondent/Applicant’s advocates.

2. The release to the Respondent/Applicant of the said sum of Kshs. 1,200,000/= held in the East African Building Society.

3. An order that the Petitioner/Respondent’s advocates do sign the documents required for the release of the said funds to Respondent/Applicant.

2. The Application is supported by the grounds on the face of it and in the Affidavit sworn by the Respondent/Applicant on 30. 9.16.  The Respondent/Applicant states that the Court on 14. 4.97 granted an order inhibiting the registration of any dealings with Plot No. […]/Section III/MI until further orders of the Court. The objective of the order was to serve as security for periodic payment of maintenance of the Petitioner/Respondent and the parties’ children as ordered by the Court. The said order was reviewed and the Court ordered that a sum of Kshs. 1,200,000/= be deposited by the Respondent/Applicant into a joint account of the parties’ advocates with the accrued interest be drawn for the maintenance of the Petitioner /Respondent and the children. It is the Respondent/Applicant’s case that since the case has now expired and the issues herein fully disposed and the children are now all adults he is entitled to have his money back.

3. By a Replying Affidavit sworn on 16. 11. 16, the Petitioner/Respondent opposes the Application. She claims that since the deposit of the said money, the Respondent/Applicant has refused and neglected to maintain his 2 children S and S and that the only amount she has been receiving was Kshs. 6,000/= per month. The Petitioner/Respondent states that she has been the sole provider for her daughters and has paid a total of UK £ 162,582 for their education and maintenance. She avers that the Respondent/Applicant lives a luxurious life in the United Kingdom and has neglected his duty to maintain his daughters. According to her, it is unconscionable for the Respondent/Applicant to ask for the return of the Kshs. 1,200,000/= yet the Petitioner/Respondent has incurred debts. She prays that the Application be dismissed and the amount be released to her.

4. During the hearing of the Application, the Court heard oral rival submissions by the parties’ respective counsel.  Learned counsel essentially reiterated the contents of the Application and the Affidavits in support of their respective positions. For the Respondent/Applicant, it was submitted that the Court of Appeal in its judgment of 25. 7.97 determined the maintenance for the Petitioner/Respondent and the children at Kshs. 6,000/= per month. That in place of the inhibition against Plot No. 276/Section III/MI, this Court ordered the Respondent/Applicant to deposit the sum of Kshs. 1,200,000/= as security for the monthly payment. The Court further ordered that only the accrued interest of the deposited amount shall be drawn monthly for maintenance of the Petitioner and the children.

5. It was further submitted for the Respondent/Applicant that the matters herein have been concluded and that the funds are lying at the bank and should be paid back to him. On the claim by the Petitioner/Applicant that she has only been receiving Kshs. 6,000/= per month, it was submitted that this was the order of the Court. The Respondent could have come back to court if at all the Respondent/Applicant had infracted the Court order. That she is guilty of laches and ought to have made the allegations earlier. It was further submitted that the fact that the Respondent/Applicant living a luxurious life is a non-issue. The orders of the Court were clear and the Respondent/Applicant had complied therewith.

6. For the Petitioner/Respondent, it was submitted that after the Court made an order that the Respondent/Applicant deposits Kshs. 1,200,000/= and pays Kshs. 6,000/= per month as maintenance, he neglected his responsibility of maintaining the children and thought that Kshs. 6,000/= was adequate for food, medical, clothing, education and other needs. That one daughter S is a student at [Particulars Withheld] University as per the annexed statement. That the children still need maintenance from the Respondent/Applicant. It was contended that it was premature to ask for the release of the funds as the children are still in college and are being educated solely by the Petitioner/Respondent. That at the time the order was made, the only income available to the Respondent was Kshs. 12,000/=. That the Respondent/Applicant has not made a disclosure of his income. That Section 80 of the Marriage Act provides that the Court may revoke or vary a maintenance order. It was argued that the children are still in college and dependant on their parents for maintenance. That the said Section 80 does not apply as upkeep is for the children and not the Petitioner/Respondent. It was further submitted that the parties are Muslim and that the responsibility of the Respondent/Applicant ends when the children are married off.  That the Application lacks merit and ought to be dismissed as it is intended to reward Respondent/Applicant who has neglected to maintain his children except for the sum of Kshs. 6,000/= per month.

7. I have considered the Application, affidavits and the rival submissions on behalf of the parties. It is not disputed that the Court of Appeal ordered a monthly maintenance of Kshs. 6,000/= for the Petitioner/Respondent and the children. It is also not disputed that the Respondent/Applicant did deposit the sum of Kshs. 1,200,000/= as security for the payment of the monthly maintenance in place of the inhibition over Plot No. […]/Section III/MI. What is at issue is whether the said amount should be released to the Respondent/Applicant.

8. It is the Respondent/Applicant’s case that that the matters herein have been settled, the children are now adults and that therefore the funds ought to be released to him. For the Petitioner/Respondent, it was argued that an order for the release of the funds would be premature as 2 children are still in college and that they need maintenance of the parents. A statement “KOA 1” was annexed to the Petitioner/Respondent’s Replying Affidavit. I have looked at the said statement it is headed S. Under the heading of fees, it shows the sum of £46,250 against University of [Particulars Withheld] and £23,000 against University College[Particulars Withheld]. The statement does not state the year in respect of which the fees relate or why indeed it is for two institutions yet the heading has the name of only one child. There are also figures for rent and monthly allowance. Again it is not stated for what period. Finally and most importantly, it is not indicated who the author of the statement is. There is no supporting document from any of the two institutions. The statement is therefore unacceptable to this Court as evidence on college needs.

9. Further, in the judgement of the Court of Appeal delivered on 25. 7.97 the ages of the children were given as 15, 13 and 5 years. That would make them respectively 35, 33 and 25 years old today. No application under Section 91 of the Children Act is before this Court for extension of the maintenance order beyond the eighteenth birthday of any of the children.

10. The Order of the Court of Appeal provided a monthly maintenance of Kshs. 6,000/= for the Petitioner/Respondent and her 3 children. The sum of Kshs. 1,200,000/= was deposited as security for payment of the said monthly maintenance. Hayanga, J did state in his ruling of 16. 11. 97:

“…the Respondent shall deposit an amount of Kshs. 1,200,000/= in a deposit account in the joint names of both his advocate and the advocate of the Petitioner forthwith. That the interest accruing from this amount deposited be drawn monthly for the maintenance of the Petitioner and the children”.

11. It is clear that the obligation of the Respondent/Applicant under the Court of Appeal Order was to pay a monthly maintenance of Kshs. 6,000/=. His obligation under the High Court order was to deposit the sum of Kshs. 1,200,000/= and the income accruing therefrom was to be applied towards the monthly maintenance as ordered. This obligation was fully discharged by the Applicant. If circumstances had changed and the Petitioner/Respondent felt that the said sum of Kshs. 6,000/= was inadequate, she ought to have moved the Court appropriately. Indeed Hayanga, J. (as he then was) ended his ruling by stating,  “Each party to have liberty to apply”. Nothing stopped the Petitioner/Respondent from moving the Court for whatever orders she felt would meet the justice of the case.

12. It is the view of this Court that the Respondent/Applicant has fulfilled his obligation under the order of the Court of Appeal and of the High Court. No material was placed before me to satisfy the Court that he is not deserving of the orders sought in the present Application. The fact that he appears to be living in luxury has no bearing on the Application.

13. Consequently, I do hereby allow the Application dated 11. 10. 16 but with no order as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 17th day of March 2017

_________________________

M. THANDE

JUDGE

In the presence of: -

…………………………………………………………… for the Applicant

…………………………………………………………… for the Respondent

……………………………………………………..…….. Court Assistant