Josephine Jepkoech — the wife of prominent Uasin Gishu farmer and politician Jackson Kibor has appealed against a decision by an Eldoret court to dissolve her 52-year-old marriage.
Through her lawyer Amos Magut, she wants the decision reversed, arguing that the magistrate erred in fact and law by annulling the union on grounds of cruelty, denial of conjugal rights among other reasons.
According to the 69-year-old mother, the court perpetrated a miscarriage of justice by ‘arriving at a wrong decision against the weight of the evidence and submission on record’.
She denied assertions that she had blocked Kibor’s access to his matrimonial home, and termed the particulars of cruelty as ‘too vague’.
“The learned magistrate erred in law and in fact by holding that the petitioner had proved cruelty on the part of the respondent despite lack of evidence in strict adherence to the definition of the said term as per the binding decisions of the High Court and Court of Appeal…” read Jepkoech’s application.
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She also weighed in on the issue of denial of conjugal rights that was cited as a ground for the divorce.
“He erred in law and fact by failing to take into account that the petitioner is in a polygamous union and thus had the freedom to choose where he would reside at any given time hence the grounds of denial of conjugal rights, causing loneliness among others were by choice...” the petition reads.
Consequently, Kibor’s former wife wants the court to declare a mistrial and refer back the matter to the subordinate court before a different magistrate.
She accused the magistrate in the case, Charles Obulutsa, of showing open bias against her during the proceedings.
Open bias
The marriage was dissolved on October 6, in a ruling that attracted wide public interest, including Federation of Women Lawyers, which termed it ‘unfair’. In dissolving the marriage, the court said the union was ‘irretrievably broken’ citing various instances where efforts at reconciliation had failed.
The court also placed considerable weight on an incident where Kibor’s wife placed a caveat on the family land, in an effort to block her former husband from disposing it.
The judge cited an incident where Jepkoech screamed during one of the court sessions as a ground to prove cruelty against her husband.
“When couples make vows they believe they will be able to sustain the bond through good and bad times but it never always happen. A popular writer stated there comes a time where the centre cannot hold and things fall apart and in this situation the union is irretrievable,” ruled Obulutsa.
But Jepkoech lawyer dismissed these grounds.
“The learned magistrate erred in law by using the respondent’s placing of a caution/caveat against the petitioner’s parcel of land as one of the grounds to prove cruelty yet the same is a right in the constitution. These occasions are miscarriage of justice…” stated the application.
Jepkoech argued that the magistrate did not take into account circumstances under which she screamed in court. She says she acted so because the court had denied her plea of adjournment yet she was unwell on the material day.
Her lawyer further stated that the magistrate erred in considering the incident since it was not part of the pleadings.
Jepkoech said the magistrate’s court ignored the respondent’s position that there was no prior reconciliation meeting between the two which means there was no disagreement.
She also took issue with the magistrate for failing to take into account her advanced age while making the final decision.
“The learned magistrate failed to take into account the age of the respondent and the fact that at her age, she cannot be in a position to start life afresh on her own,” the appeal reads.
Richard Wainana, one of Kibor’s lawyers confirmed that he had been served with the petition, but they are yet to respond. In February 7, Kibor’s wife filed an application seeking Obulutsa’s disqualification from the matter.
On March 1, however, Obulutsa ruled against the application stating that the respondent’s lawyer was the one that had failed to organise their diary resulting in numerous adjournments.
moruko@standardmedia.co.ke
