Men cry foul over oppressive divorce laws

The words “standard of living” appear 12 times in a court decision ordering Philip Moi, the son of Kenya’s second president, to pay Sh30 million for the upkeep of his former wife for 10 years.

Their frequency in the 8,459-word judgment underscores how vital the issue of status was in the case that lasted in court for seven years.

Justice Luka Kimaru finally determined that for the next 10 years, Mr Moi’s ex-wife, Rossana Pluda, has to live in a status similar to the one she enjoyed during marriage since Mr Moi had been the sole provider.

The judge noted that Mr Moi would pay the Sh30 million at once in place of monthly instalments of Sh250,000 because he had “told the court that it would be his desire that he be ordered to pay one lumpsum so that he is not required to pay monthly maintenance”.

He also ordered Mr Moi to find Ms Pluda a house in “Runda, Lavington, Kileleshwa, Kilimani or Karen or any other upmarket area of Nairobi”. 

“This will accord with the standard of living that [Ms Pluda] was used to during the subsistence of their marriage. He shall provide this house within 90 days or in default thereof he shall pay her the sum of Sh60 million,” the judge said.

The attention paid on status has angered a section of men who feel Mr Moi was a victim of laws that are continually favouring women.

One of those critical of the decision is Mr Ndiritu Njoka, the self-declared executive chairman of the Maendeleo ya Wanaume organisation.

Mr Njoka said the best way to get rid of the trap that has caught many men is to amend laws to make men the automatic custodians of children born in a marriage.

“There is no problem if Mr Moi can comfortably foot the bill. But if he feels the judge was excessive in slapping of the costs, I can help pursue an appeal,” he said.

The judge had expressed disappointment at Mr Moi’s unwillingness to disclose his wealth. 

“However, his reluctance to disclose his properties will not prevent this court from rendering its decision in accordance with the evidence placed on record,” he said.

Automatic custody

Mr Njoka said the proposal to give men automatic custody of children is contained in a Bill sponsored by his organisation.

“It is called the Family Bill and it has been presented to the National Assembly by our secretary Waihenya Ndirangu, who is also the Roysambu MP, and is now before the House Legal Affairs committee,” he said.

Contacted, Mr Ndirangu said the Bill was awaiting the input of committee members.

“Mr Njoka is expected before the committee soon to share his views about it,” the MP said.

“He was to appear before it last week but it (committee) was too busy for having received so many petitions. His discussions to the team will help fill the gaps in the proposed law before it can proceed.”

Commenting on the place of status when deciding divorce-related disputes, the judge in the Philip Moi case said that courts cannot rebuild the full financial status of a spouse after divorce.

“Be that as it may, it is accepted that parties who approach the court for spousal maintenance cannot expect the court to afford them the lifestyle to which they were accustomed during the marriage,” Justice Kimaru pointed out.

In her case, Ms Pluda had asked the court to pay a lumpsum of not less than Sh100 million “even if such payment comprises a house and the rest in an amount such as the court may determine”.

“[Ms Pluda] further urged the court to take into account the fact that Mr Moi had offered to provide her a house in Lavington, which cost Sh24 million at the time of the offer but which currently costs approximately Sh100 million,” the judge said.

But Mr Moi said he could not pay the amount because his businesses had gone under, a claim that was dismissed by the court.

“He states that his finances have since dwindled so much so that it would be unfair for the court to award maintenance of the basis of a lifestyle that is no longer sustainable,” said Justice Kimaru.

Another recent court decision that paid attention to status was delivered on January 31 by High Court Family Division Judge William Musyoka

The ruling, published by the Kenya Law Reports, says Justice Musyoka ordered a man, whose name is abbreviated as C.Y.C. to protect his privacy, to provide a four-bedroomed mansion for his former wife K.S.Y.; provide furniture or pay Sh1.5 million for the same, pay Sh300,000 per month for expenses.

The judge also ordered the man to “return either the Prado or Lexus that had previously been placed at her disposal or, in the alternative, provision of another car of similar range or standard.”

Children’s court

The orders were to last until a case between the two is finalised at the Children’s Court.

Other  high-profile Kenyans who have been involved in child maintenance suits are former minister Fred Gumo, Bungoma Senator Moses Wetang’ula, steeplechase champion Ezekiel Kemboi and former House Speaker Kenneth Marende.

In the Marende case, for instance, the court ordered him to pay Sh103,780 as school fees for a three-year-old girl in February 2014. There was also another lady seeking Mr Marende to honour a 2011 court order that he pays upkeep for a 10-year-old girl he had sired.

Mr Peter Chemaswet, a historian-cum-pastor, says the risk of commercialising the institution of marriage is increasing.

What is more; when a party to a divorce or child custody settlement fails to raise the amount set by the court, the law allows the woman to pay the government so he can be sent to civil jail.

Nyando Resident Magistrate Paul Wechuli said that once a man refuses to pay up the set amount, his accuser can apply for either the attachment of the man’s property or throwing him in jail.

“The man can be locked up for up to six months and the wife will shoulder the costs of his stay in jail,” the magistrate said.

“However, the children’s court usually exercises discretion because throwing someone into civil jail is often not a solution to a non-payer,” he added.

An official at the Kisumu Main Prison, who declined to be named, said that a woman paying for the jailing of her estranged husband is required to pay on a monthly basis, adding that such a prisoner is handled like other inmates.

Child maintenance

Mr Paul Kimuri Kirimi is such man. A ruling on the Kenya Law Reports says Mr Kimuri was locked up for two months over a Sh3,103,461 debt owed to the “Standard Chartered Bank and child maintenance arrears.

“He accepts his debts and his liability to pay them. He even makes proposals to repay when he regains employment,” Lady Justice Farah Amin ruled in a case where Mr Kimuri sought to be declared bankrupt.

The judge ordered his release saying: “As a matter of logic and common sense, it is clear that the applicant has no prospect of repaying his debts while he is in prison.  In the circumstances, I order his immediate release.”

Mr Chemaswet quoted the good book to support his claim that a man should be left to take care of children.

“If you read the book of Genesis from the 17th chapter, the story of Abraham and how he related with his sons Isaac and Ishmael, it is clear that the man is the one to bear the responsibility of his children,” said the pastor at the Baptist Church in Solai, Nakuru County.

Currently, children’s custody is left to the discretion of the judicial officer handling a case, and the practice in the courts has been to rule in the best interests of the children.

Children fast

Mr Njoka and Mr Chemaswet said that a father assuming the care of his children is in the best interest of the child.

“When a man is charged with taking care of children in a woman’s absence,” Mr Njoka said, “the children are at a better place because he can get another wife to take care of them. But when it is a woman left to take care of children, boys usually suffer especially when their mother remarries. That is why we have many boys in the streets.”

Mr Chemaswet, renowned for his Kiswahili history programme in the Kenya Broadcasting Corporation radio in the late ’90s, said most African cultures recognise a man’s home as a haven for children.

“In the Kalenjin traditions, for instance, it is said that a child has to return to their father one day. Ceremonies like initiation cannot be done in any other home other than that of the father,” he said.

Vihiga-based lawyer Dorcas Osabwa says that to avoid an acrimonious separation, couples should sign a pre-nuptial agreement like happens in the West.

“When there is such an arrangement, both parties know what they are getting themselves into. That will solve a lot of disputes,” she noted.

“Parties to a marriage have equal rights during and after marriage. If the wife and children were accustomed to a particular status, that shouldn’t end just because of divorce,” said Ms Osabwa.

She said the courts are not unfair to men, adding that the judge only implements the law.

“The doctrines that the courts implement are passed by Parliament,” said the lawyer.

Ms Osabwa said no one should complain that amounts set by the courts are high because they are always reasonable.

“If Philip Moi was honestly earning Sh10,000, would the court have ordered him to pay millions? I don’t think so,” she added.

Are women out to make money from  their husbands?

Isaiah Achola, 27, musician

Yes. There are some men who women target. Women are increasingly using marriage and child bearing to exploit men financially. However, some blame should also be apportioned to men, especially the ones who are never satisfied with what they have.

Yvonne Michelle, 20, student

I don’t think women are gold-diggers. It’s by luck that one finds a rich man. A woman becomes exploitative when she realises that it is not love that keeps them together but she stays on to secure a bright future for herself and her children.

Lawrence Adera, 42,

Much as some women are cheeky, men are to blame for often letting their emotions lead them into situations they can’t undo. If a man wants peace of mind, he should always be open. When a woman finds out that she is not the only one, she will activate the “exploiter” mode.

Mabel Akinyi, 19, student

Women are increasingly being materialistic because it is getting harder and harder to get a man who will take responsibility after making you pregnant. But I believe that if women became self-reliant, we would not be treated to the circus we witness in courts.

Partners’ rights

What law says on division of matrimonial property

Parliament passed a law which says that those planning to tie the knot can sign an agreement on property rights before marriage.

In the Matrimonial Property Act that was assented to in December 2013, the legislators, however, said a party can apply for a review of such an agreement later on.

“A party to (the) agreement may apply to the court to set aside the agreement and the court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust,” reads section six of the Act.

The Act said that division of property depends on each party’s contribution.

“Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved,” said section seven.