'Adulterous' Kenyan woman ordered to pay back dowry in landmark divorce case

After a two-year court battle, a secondary school teacher has scored a landmark victory in a divorce case. The court granted James Mayaka divorce from his cheating spouse and also ordered her to partially refund the dowry he paid.

Kisii High Court has ordered Everline Kerubo, his estranged spouse, to refund Sh205,000 being part payment for dowry and the fees he paid for her college education.

The judgement, read by Judge Chrispin Nangila on behalf of Judge Ruth Sitati on February 27, could have far-reaching ramifications in future divorce suits involving cheating spouses.

The cuckolded man said his wife, whom he wed in 2004, ran into the arms of another man in 2009, barely five years into their marriage.

But despite the pain of being jilted, it is clear Mayaka will now have the last laugh. He had petitioned the court to order Kerubo to pay back the Sh209,000 he paid for her in college fees.

In addition, he had asked the court to compel her to refund the Sh120,000 he paid as dowry.

However, the court ordered Kerubo to refund half the amount for each category; Sh104,000 for college fees and Sh60,000 for dowry. That worked out to a total of Sh164,000. The figure, however, rose to Sh205,000 after interest was factored in.

Mayaka filed the divorce case at Kisii High Court in March 2011, but proceedings did not commence until 2013.

Mayaka said his wife's actions were an embarrassment not only to him but also to the community. The court's verdict, he said, should be a lesson to philandering spouses.

Thursday, he made it clear that he expects Kerubo to pay up the Sh205,000 as directed by court.

The Standard caught up with the teacher in Nyamira town as he was preparing to go for an interview at the local Education offices. He wants to become a deputy principal in one of the schools in Nyamira.

Further, Mayaka is seeking to be granted custody of their two children, arguing that his wife had become adulterous and was cruel to him.

"My only hope is that I get custody of my children who have constantly suffered under the ill treatment of Kerubo as she keeps changing their residence from one relative to another," said Mayaka.

He says his children might suffer because Kerubo had opted to get married to a polygamous man. Going by the court documents, Kerubo never appeared in court.

Thursday, we tried to contact Kerubo via her mobile phone but she did not pick our call. An attempt to reach her later were futile as her mobile phone had been switched off.

Mayaka had submitted to court that despite paying her wife's college fees and bearing two children with Kerubo, he lost her wife to another man.

He said that he married Kerubo on September 7, 2004 at the then District Commissioner's office under the Marriage Act Cap 150 and they lived together as husband and wife at their matrimonial home in Mosobeti, Nyamira County.

His wife, he said, however deserted their matrimonial home and went to live with another man at Nyagachi Chief's Camp also with Nyamira County.

During the hearing, the petitioner alleged that the wife had subjected him to anguish and mental torture by running away from their matrimonial home and eloping with other men. He said since June 2009 to date, his wife lived with Charles Moseti, the second respondent, at Daraja Mbili in Kisii town.

Dead marriage

The petitioner, through his lawyer, Samson Sagwe, told the court before Judge Ruth Sitati that his wife kept on deserting the matrimonial home and roamed several villages with other men until she settled with the second respondent as wife in 2009. Since then she has been living with him and they even have a child together.

Moseti said his wife on several occasions carried away from their matrimonial home property that he bought.

In the judgement that was read on February 27, 2015, the court based its grounds for dissolution of the marriage under section 8(1) of the Matrimonial Causes Act.

Part of the Act states that: 'A petition for divorce may be presented to the court either by the husband or the wife on the ground that the respondents has since the celebration of marriage committed adultery or has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition.'

"I am convinced the marriage herein has broken down irretrievably. I find that the marriage herein is dead and I see no reason why the court should not grant the order sought as it is obvious to the court the couple herein lost all love for each other and the likelihood of a reunion is remote," said the judge.

The judge added: "Accordingly, I pronounce a decree of divorce and order that the marriage solemnised on September 9, 2004 at the DC's office Nyamira between James Mayaka and Everline Kerubo be hereby dissolved. Decree nisi shall issue forthwith and the same shall be made absolute after expiry of a period of thirty days from the date hereof."

Mayaka had earlier said despite paying college fees for his wife to the tune of Sh209,000, he had also acquired a medical cover for her.

In his tearful testimony, Mayaka told the court he paid Sh60,000 representing three heads of cattle and Sh60,000 in cash to his wife's parents.

The respondent's counsel, Wilkins Ochoki, argued that marriage is a sacred institution that cannot be dissolved on allegations that cannot be proved.

He told Judge Nangilah that the respondent has not asked for custody of the children and there were no exceptional circumstances why his wife should not continue having custody of the children.

Judge Nangila noted that the issue of children custody shall be determined by the children's court in Nyamira as there is an application pending there (Children's case number 11 of 2009).