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Citizen Weekly

Wednesday, 25 March 2015


It was four years of marital bliss and unbounded romance for school teachers James Mayaka and Evelyne Kerubo after they fell in love and wed in 2004 in Nyamira town.
However, things changed in 2007 as she was swept off her feet by an illicit lover, one Charles Moseti, with whom she eloped, deserting her husband and two children. Now the couple is bound to become a case study in Kenyan matrimonial dispute verdicts after the High Court in Kisii ruled this week that Evelyne refund Mayaka Sh225,000 which he had paid for dowry and her education at a primary school teachers college.
Family lawyers yesterday observed it will become the first ruling in which a woman has been ordered to refund both money spent by her husband on her education and her dowry as well as other expenses he splashed on her parents. The case may also serve as a stern warning to unfaithful spouses who cause  their partners to incur expenses on their welfare, only to desert them.
Kisii High Court Judge Crispin Nangilah made the ruling after Mayaka, a secondary school teacher, petitioned the court to end his marriage to Evelyne who left him to marry her younger lover Moseti. Nangilah directed Kerubo to pay the petitioner Sh205,000 and ruled that the Nyamira Children’s Court will determine who would have custody of their two children, Mayaka Monga’re, 8, and Diana Mong’are, 5.
The money was tabulated as Sh60,000 for three cows that Mayaka had paid as dowry at Sh20,000 each, another Sh60,000 that he had given her parents in cash and Sh85,000 in college fees. She will also pay interest and cost of the suit. Mayaka, represented by lawyer Samson Sagwe, testified that he married Evelyne in 2004 at Nyamira DC’s office under the Marriage Act Cap 150 of the Laws of Kenya, but she left him in 2007 to co-habit with Moseti, prompting him to seek divorce.
He accused his wife of adultery, cruelty and desertion of their Mosobeti home to stay with the second respondent at Daraja Mbili in Kisii Town, thus subjecting the children and him to torture and mental anguish. But, in a joint defence, Moseti and Kerubo denied they were married, saying the dowry Mayaka was claiming back had not been not paid and her parents had not consented to their union.
Marital counsellor Benjamin Ondigi had testified that attempts to reconcile the couple had failed because Kerubo was “uncooperative, rude and abusive”. “In the circumstances, I find the marriage herein is dead and see no reason why the court should not grant the order sought as it is obvious the couple have lost all love for each other and the likelihood for the re-union is remote,” ruled Justice Nangilah on behalf of Justice Ruth Sitati who has since been transferred from Kisii. T
he judge ordered the first and second respondents to pay for the cost of the petition and settle it within 30 days of the ruling. In his testimony, Mayaka had told the court he paid Evelyne’s fees at the Narok Teachers Training College to train as P1 teacher from where she graduated in 2004.
He said he paid Sh209,000 in tuition fees and expenses, adding that before she ran away with the children, they were studying at Riverside Academy in Nyamira, but were later transferred to White Star Academy. The petitioner told the court his wife abandoned him with the children and he stayed with them for three years before she took them away between 2010 and 2011, from when he never saw them again.
In his testimony, Mayaka told the court, he paid Sh60,000 in lieu of three heads of cattle and Sh60,000 cash to Evelyne’s parents as dowry, adding the wife committed adultery and has a child out of wedlock with Moseti. In his cross examination lawyer Ochoki, for the respondents, confirmed there was a children’s case before the Nyamira court filed in 2009 where Kerubo was given temporary custody of the children, but when she delayed to follow up the case, he applied for its dismissal.
He said the case was reinstated since the children were taken away, maintaining his wife should not be granted custody the children because she has no adequate income and was not sure whether she even has suitable shelter. The respondents never gave evidence to rebut his allegations.
The lawyer submitted that marriage is sacred institution and should not be dissolved on mere allegations that cannot be proved by the petitioner. He told Justice Nangilah the petitioner had not prayed for custody of the children and begged the petition be dismissed. The lawyer submitted that the petitioner had not pleaded special damages as required by the law and argued the same could  not be awarded, pleading that the court cannot order the release of goods whose details and particulars were not known.
In his ruling, Justice Nangilah noted, “I am satisfied that the respondent deserted the matrimonial home without reasonable cause. I also find cruelty has been proved within all parameters.” The Judge noted, the petitioner had shown he paid fees and upkeep for the first respondent while she was at college which had not been challenged.