L.G.N.G v J.G.K [2010] KEHC 3654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

Divorce Cause 2 of 2008

L.G.N.G………………………………………………………PETITIONER

VERSUS

J.G.K……………………..…………………………………………RESPONDENT

R U L I N G

The petitioner herein, L.G.N.G petitioned for divorce on 29/2/2008. Two weeks later, she filed a Notice of Motion dated 14/3/2008 asking for orders that the Respondent be ordered to provide her with Alimony and or maintenance pending the hearing of the divorce cause.

In her affidavit of means, she claims that the Respondent earns a monthly salary of Kshs.103,140/-.   Yet she has asked for 102,000/= in paragraph 6 of her affidavit.

In her supplementary affidavit, she has annexed a schedule of rent showing that the respondent receives 50,000/- monthly as rental income. In my view however, the said copy of rent card has not been signed by the Respondent and it cannot therefore authenticated. In his replying affidavit, the Respondent has denied earning the amount stated by the petitioner. He avers that he has indeed spent a lot of money settling debts incurred by the petitioner who he refers to as a chronic borrower. He also depones that he is over 90 years old and in poor health while the petitioner is still strong and capable of fending for herself.

I have considered the said application and the rival affidavits. If it was purely upto me as a reasonable or prudent person, I would say that this is a couple who should not even be in court seeking divorce. A 92 year old man like the Respondent herein should be enjoying his twilight years without worries of court cases and alimony suits. It is a pity that the petitioner has had to file this matter. Now that the matter is in court however, the court must give a decision which decision must be guided by the law and the circumstances of the case.

Before the court can determine the amount of alimony to be paid to the petitioner, it is necessary for the court to determine the average net income of the husband for the 3 years preceeding the date of the order. As stated earlier on, the annexure showing the rental income could not be authenticated.   There were other figures written at the back of the said annexure whose source was not disclosed. Even if I find that the evidence on the rental income can be relied on, hat could mean an amount of 50,000/= per month and the average gross income under Section 25 (1) of the matrimonial causes Act, alimony pendente shall not exceed one fifth of such average income. This therefore means that the alimony payeable to the petitioner cannot exceed 10,000/= monthly. I will therefore grant her that amount as the dictates of the relevant law demand but also because in my view the said sum is sufficient to cater for the petitioner expenses.

I therefore allow the notice of motion dated 14/3/2008 and grant prayer 1 of the same. The Respondent shall pay to the petitioner 10,000/= monthly as alimony while pending the hearing and determination of this divorce cause or until the said order is vacated or otherwise varied by the court.

W. KARANJA

JUDGE

Delivered, signed and dated at Embu this 3rd day of March 2010.

In presence of:- Ms Kimani for Mr. Kathungu for Petitioner.

Petitioner in court.