Emerging trend: Kenyan couples turn to courts in dealing with their marital issues

In February this year, businessman Jim Muthama was charged with a criminal case of conspiracy to defraud his wife Veronica Wairimu after he allegedly sold a matrimonial property without her knowledge.

Muthama however, contested the charges and instead accused his wife of using the police and the criminal justice system to settle their bedroom wars. Again in February this year, Ewart Salins, moved to court to stop charges levelled against him by his wife, Jacinta Njoki.

Jacinta had alleged that Ewart assaulted her but he claimed the dispute was really about property and money. He said his wife had been using all manner of tricks to have him apportion her some shares.

Yet another couple, Solomon Mwangi and Judy Lubulwa, moved to court this year where Judy was accused of conspiring with another individual to cause Solomon bodily harm. Solomon took to the stand to testify against his wife and his evidence resulted in a two year jail sentence for her and the accomplice.

Alternative mechanisms

In another case, Chris Ngugi was taken to court by his wife Lily Ngang’a who accused him of assaulting her for allegedly reading a text message in his mobile phone. Chris was charged with injuring his wife who was listed as the first witness and was set to testify against him.

These are just a few examples of an emerging trend where partners who are still legally married seek to punish the other by instituting criminal charges against them.

It would appear couples are no longer inclined to seek alternative dispute resolution mechanisms and instead prefer to rush to the courts.

An audit conducted, by the Judiciary, to look into the country’s criminal justice system revealed that as many as 70 per cent of cases before them involve offences that can be resolved out of court. An example of these is cases of disagreement between couples.

“A national conversation needs to be started around the appropriateness of using criminal law. The intention is to open the conversation around better ways of managing these issues since they not only have a cost to families but also to the State who use expensive criminal justice machinery to process these matters,” the report said.

The report further noted that since the criminal justice system takes a longer time to arrive at a determination, the process increases acrimony between marriage partners. This ultimately does more harm than good to the family unit.

According to city lawyer Angela Ndegi, there should be provision in law barring a husband or wife from testifying against each other in criminal cases.

This she says is to avoid acrimony at home especially where the couples are not separated. Ndegi says while it is not wrong for a partner to file a criminal complaint against the other, since they both have a duty to uphold the rule of law, police need to conduct proper investigations to avoid being influenced by untrue claims.

“When partners in a marriage disagree, the best solution will come from them. Involving the police can result in one of them getting charged and the court’s decision may end up hurting the entire family,” she said.

Sentiments that family law expert, Peter Munge, concurs with saying a husband and wife are best advised to seek out of court resolution mechanisms.

“Some of these disputes over property should not result into criminal cases unless they are serious offenses or threats involved. The couples can settle them out of court to avoid the long trial and embarrassment of having your partner testifying against you,” Munge said.

Although the 2013 Matrimonial Property Act does not provide specific sections on how to handle property disputes between couples resulting to criminal prosecution, Ndegi said such cases are handled under the Penal Code which has charges and punishments for various offences.