The High Court in Kakamega has directed a man in dispute with his wife over matrimonial property to pay her Sh1,000 unpaid bride price within 30 days.
The man, HGE had been sued by SM at the Vihiga Principal Kahdhi’s Court Matrimonial Cause.
SM, in the suit filed in the year 2019 claimed HGE had distributed his estate, in particular, a parcel of land situated at Jebrok in Vihiga, but left her out.
She further alleged that she lived in the said parcel of land, and she has been thrown out, despite being the legal wife of the man.
The woman sought, among other prayers, that the man gives a portion of his property to her.
However, the man, filed a defence and counterclaim, disputing the purported marriage to the woman.
After hearing of the suit, the trial court upheld the marriage between the two, ordered the man to allow the woman back to the matrimonial house at Jebrok with immediate effect.
The court further ordered the man to allocate and transfer a half share of Jebrok plot to the woman within 21 days to safeguard her interests.
In addition, the man was to pay the woman her unpaid bride price of Sh1,000 within 30 days.
It is from the orders that the man lodged an appeal at the High Court, arguing that the trial court was wrong in finding that there was a valid marriage between him and the woman, and directing him to pay dowry to and to maintain the woman.
HGE as per the court papers, said his right to freedom of association was violated by the order that directed him to reside with SM.
He also faulted the trial court for compelling him to allocate and transfer property to the woman.
The woman, during the hearing of the case, informed the court that she was yet to receive her bride price.
She produced a certificate of marriage, which the man claimed was a forgery.
Justice William Musya Musyoka in a judgment delivered on Monday, said it was upon the man to prove that the certificate of marriage was a forgery.
Justice Musyoka said he was satisfied that SM had proved the existence of a marriage between her and HGE.
The judge added that the burden of proof had shifted to the man to establish that the document being relied on was forged.
“The appellant (HGE) ought to have subjected the certificate of marriage to forensic examination to determine the authenticity of the signatures on it, and to place a report of the examination as his evidence of the alleged forgery. That was not done. The trial court could not dismiss the genuineness of the certificate of marriage without a report from a forensic expert,” stated Justice Musyoka in his judgment.
Having established that there a valid marriage between the two, the judge, went ahead to determine whether there was a duty for them to reside together.
The judge said it was improper and immature for the trial court to direct that part of Jebrok plot be transferred to the woman.
“Consequently, it was improper and premature for the trial court to direct that part of Plot… Jebrok be transferred to the respondent (SM) at that juncture. Consequently, it is my finding that all the orders of the trial court relating to that property were not proper,” read the judgment.
Justice Musyoka allowed the appeal by HGE to the limited extent of setting aside the orders of the trial court that directed the woman to go back to residing a plot in Jebrok, allocating her the said plot and directing its transfer to her.
The order was substituted with another that the man shall provide the woman with residence.
“The same shall be substituted with orders that the appellant (HGE) shall provide the respondent (SM), forthwith, with a residence, commensurate with her status as a spouse, whether by buying or renting one for her. The other orders in the impugned judgment shall remain intact,” concluded the Judge.