Former President's Son Sued Over Maintenance

R.P. M. v P. K. M

High Court at Nairobi

G. B. M Kariuki J

February 16, 2012.

"This court has a duty to ensure that the decisions of the court are not mere rhetoric but rather are decisions that must be obeyed by those to whom they are directed. In part the confidence of the public in our system of justice depends on the efficacy in the implementation and obedience of court decisions. It is for these reasons that the court takes a serious view of the Respondent's failure to obey the court order."

The High Court in Nairobi recently issued orders for the arrest and detention of a former president's son in a divorce matter, for failing to pay maintenance of his estranged wife. The wife, the petitioner in this case had filed an application seeking an order for committal of the respondent to civil jail in default of payment of the sums ordered by the court. The respondent had been ordered to make payments towards maintenance of the wife and the children in the sum of Sh250,000 and Sh150,000 per month if the children were in boarding facilities.

Judy Thongori who represented the petitioner told the Court that despite being issued with the court order, the respondent failed to pay the money demanded. It was Thongori's contention that the High Court had jurisdiction under Rules 58 and 59 of the Matrimonial Causes Rules to issue orders for the committal of the respondent to civil jail until he paid the ordered sum.

In advancing her clients case Thongori contended that the respondent was unwilling to pay for the maintenance of his children and drew reference to Article 53 which obligated both parties to care and provide for the children. Article 53 of the Constitution provides that, every child has a right, inter alia, "to parental care and protection which includes equal responsibility of the mother and father to provide for the child........"

In opposing the application, the respondent's advocate, Evans Ondieki, urged the Court to dismiss the application as they had previously filed an application seeking to stay the orders for maintenance against the respondent pending the filing and hearing of an intended appeal. Mr. Ondieki further submitted that under Articles 53 of the Constitution, parental responsibility was equal between spouses and that the order requiring the respondent to pay alone the Sh250,000 per month was unrealistic and "exposed men to danger and that men may be forced to leave their homes."It was his contention that his client's appeal would have been rendered nugatory if the order of stay was not ordered.

In deciding the matter, the Court first dealt with the issue of stay. It was the Court's view that there was no merit in the application as this had been overtaken by events. The Court stated that if the orders of stay were granted, it would have undermined the welfare of the children which was paramount in the Court's view. The Court went on to explain that the payment had not arisen from a commercial transaction but had sprung from an obligation to maintain a spouse and her children whose needs could not have awaited the outcome of an appeal. "It is not money in respect of which a refund can be sought if an appeal court were later to reduce the amount payable monthly."

In short, the Court was saying that the respondent could not show that he would suffer irreparable damage unless stay was ordered. In matters of maintenance under the Children Act, the Court stated that the parameters in considering stay were different from those obtaining in commercial transactions. The Court thus found that the respondent had not established any basis on which it could have stayed the order requiring him to pay to the petitioner and children of the marriage.

With regard to the application for committal to civil jail for non-payment of the monies ordered the Court stated that the court orders were not made in vain and court litigations were not matters to joke about. Failure to obey court orders attracted serious penalties. For starters, the Court averred, the respondent's appeal had not appeared to have been in place and if it was, no steps had been taken to prosecute it. According to the Court, there was no evidence to show that the respondent was not capable of paying. On the contrary, there was evidence to show that he had the wherewithal but continued to default in paying.

In short, the Court was of the view that he was unwilling to pay unless compelled to do so. Unless Court orders were obeyed, the authority of the Court would have been undermined. The Court stated that the Constitution, and hence the people of Kenya, had vested in the courts judicial authority to determine disputes for the benefit of parties in particular and the society in general. That authority emanated from Article 159(1) of the Constitution and was to be exercised in good faith and in the lawful performance of judicial function.

The judge stated that the said authority was exercised to dispense justice guided by the principles enshrined in Articles 159 (2) of the Constitution and the national values and principles of governance in Article 10 of the Constitution. The Court reiterated that it had a duty to ensure that its decisions were not mere rhetoric but rather decisions that had to be obeyed by those to whom they were directed. The judge stated that the confidence of the public in the justice system depended on the efficacy in the implementation and obedience of court decisions.

The court, in granting the application to commit the respondent to civil jail however held the view that no one should be sent to civil jail for inability to pay a debt as this would have amounted to discrimination against the have-nots and that it would have made no sense to send to civil jail a person who was unable to pay as that would have been malicious. The court was of the view that civil jail was for those who refused to part with their money to pay debts and that the objective was to deprive the debtor of freedom in the hope that he would pay so as to regain it or so as to eschew losing it.

According to the Court, civil jail was to be resorted to because the creditor was unable to trace or lay his hands on assets of the debtor that could be attached. The court further stated that there would be no need to send a debtor to civil jail if one could attach his property and recover the debt owed and that such a measure should have been considered as a final resort. The Court found it regrettable that the respondent had failed to shoulder his obligation as a husband and a father and allowed the matter to drift to the level it had. The judge stated that it was the duty of the Court to have ensured that the rights of the petitioner and her children were enforced and redress obtained. He stated that the law had to be enforced without fear or favour against all regardless of their social status.

In conclusion the court ordered a warrant of arrest and detention in civil jail at industrial area Nairobi for a period of one month be issued against the respondent unless he paid in full all the maintenance due from him to date.