How man's quest to sell land ended in messy divorce

In their sunset years, a man and his now ex-wife could have been enjoying companionship while playing with their grandchildren.

But theirs was a smoky home in which no one saw peace owing to what a magistrate termed a chauvinistic man who saw his wife as property.

The two initially fought before Senior Resident Magistrate Vincent Kiplagat. Nevertheless, the magistrate lashed out at the old man and declined to issue a divorce.

Despite preserving the marriage, Kiplagat also ordered the man to never set foot in the matrimonial home.

.

Keep Reading business

•  Developer defends use of Jevanjee Gardens' land as collateral for Sh1.9b loan
•  How housing initiative changes lives of widows in Rarieda
•  Love for fine suits turns pharmacist into fashion designer sensation
•  The struggles of doing business next to learning institutions
•  Metrofile and KARMA partner to boost Kenya's digital transformation

He said the magistrate erred by dismissing the divorce filed by the man while at the same time requiring him not to be around the matrimonial home.

The man intended to sell a piece of property without consulting the wife. When she erected hurdles by putting up caveats, he decided to frustrate her to have her file a divorce.

This included becoming violent to their adult children.

However, the woman never yielded. She told the court that they had been married for 38 years, and she knew that he could kill. In her own words, she claimed that the husband was a very dangerous man, he could kill, and he was hot-tempered. She also claimed that there was an external force driving him.

Nevertheless, she wanted to keep her marriage.

The two married in 1977. They had weathered the storms of marriage until the man decided he wanted to sell their land. Then, all hell broke loose.

In Kenya, the legal grounds for divorce include adultery, cruelty, desertion, exceptional depravity and irretrievable breakdown of the marriage. Separately, there is an ongoing court battle pitting a lawyer and AG to end the fault-based system.

In its case, Copler Attorneys and Consultancy argue that sometimes there is no need for one to be cruel or adulterous for a marriage to end. According to the petition, one can feel that they are incompatible with their partner or the embers of love may die without any negative issue.

“The law, as it is, requires parties to be guilty of something sinister, and absent of it, a court cannot grant orders of dissolving a marriage. In some cases, parties have to relieve their ordeals, in court; some which are embarrassing, in order for the court to find the marriage irretrievably broken,” states the law firm’s director Boniface Akusala

However, MPs and the Attorney General are opposed to a proposal to have the divorce law repealed to allow couples to walk away without washing dirty linen in court.

They argue that repealing the current law amounts to allowing Kenyans to take marriage as a trial and error game and would destroy families.

On the other hand, a human rights group- Legal Aid Clinic- has backed the case. “May I remind this court of the old adage that goes; let the hawk perch, let the eagle perch, if one tells the other not to perch, may his wings break, equally so, those desirous of quitting or divorcing should be allowed to do so without any form of restrictions or qualifications of whatever nature of form,” the lobby’s lawyer Edwin Amboso argues.

In the man’s case, Justice Kariuki said the law allows spouses to file for divorce without necessarily having to prove a fault in order to make it easier for the court to find that the marriage is dead.

He, however, noted that the offences claimed must be by the other person. The Judge said that one cannot for example claim to have committed adultery then rush to court to seek a divorce based on his or her alleged fault.

“In many jurisdictions, including Kenya, this ground allows one or both spouses to file for divorce without having to prove fault, such as adultery or cruelty. It simplifies the process by focusing on the fact that the marriage cannot be saved rather than assigning blame,” he said.

Justice Kariuki also said some of the ingredients that courts look into to determine if a marriage cannot be salvaged include the degree of animosity, resentment, mistrust, disrespect, communication breakdown, lack of willingness to try resolve the issues, physical separation, desertion, failure to carry out matrimonial duties, alcoholism, emotional abuse and contemptuous treatment.

“How do we prove the irretrievable breakdown of marriage? Whether or not a divorce is contested, the grounds for Divorce to be relied upon must be proved to the Court on a balance of probabilities such that the Court is convinced after hearing testimony that, more likely than not, the events leading to the Divorce indeed happened and have destroyed the marital relationship such that the marriage has irreparably broken down,” he observed.

The judge stated that in the case, the man said they had initially stopped cohabiting in 2015 when he filed the divorce. They then went back together until this year.

The man claimed his wife subjected him to a very abusive and hostile attitude, denied conjugal rights, set children against him, ganged up together with hired goons to beat him and drove him away from the matrimonial home.

The man also claimed he used to be denied food and abused in the presence of relatives and other members of the public, including calling him malaya (prostitute).

He also claimed she had alongside their children hired goons to assault him.

On the other hand, the woman claimed he had an ungovernable temper, treated her with contempt, hostility and cruelty, and physically assaulted her, which used to drive her to the fortress of police to escape his wrath.

She argued that there was no evidence to show that she was cruel or she had behaved in a way that could cause the marriage to break down.

The woman said that her husband was running away from the marriage with the sole agenda of selling their property. She urged the court to uphold the order to not part ways.

However, Justice Kairuki ruled otherwise.

“There is no way that the marriage between the parties herein can work, even going by the testimony of the Respondent, who testified that the Appellant is a person who can kill. It is submitted that to avoid such an eventuality, the prudent thing under the circumstances would be to grant the Appellant the Divorce that he sought in the lower Court,” said Justice Kariuki.

The woman had also filed a cross-case. She urged the court to block the man from selling matrimonial property. However, she said he moved to the magistrate’s court to lift the cautions without involving her and eventually got orders in his favour. She, however, went again to the same court and got orders to stop him.

He then filed a High Court case this time seeking distribution of matrimonial property. However, the court heard that he could not get the orders as they had not divorced.

She alleged that his attempts to force her to file for divorce included infidelity with a former house help, using violence and obscene language, assault, and failure to do his husband’s duties, including conjugal rights. She stayed put.

She argued that the properties in question were bought through her sweat. She alleged that she enrolled him in a teacher training college in 1979 and paid his school fees while maintaining the home and raising children. He then filed the divorce.

“The antics and drama caused by the appellant were all informed by his possessed spirit to sell the couple’s matrimonial properties, causing irreparable damage to the respondent’s interest in the properties,” she argued.

In the meantime, data released by the Kenya National Bureau of Statistics last year indicates that there has been a surge of divorce cases by 16.5 per cent over the past 10 years.

The report indicated that a divorcee headed at least 405,515 households. This translated to at least 61 per cent of women-led households and 38.7 per cent led by men. According to the report, there is a probability that a divorcee heads one out of every 18 homes in Kenya.

The survey also indicated that there was no significant surge of women heading households, but there an increase of men.