- February 17, 2019
- Posted by: p mulee
By Our Court Reporter
An ex- wife to former Machakos Senator Johnson Nduya Muthama has suffered a major blow after the high court dismissed her attempt to claim a multi-million home owned by the politician cum businessman.
The High Court ruled on Friday that Agnes Kavindu Musyoka who divorced the politician in 1983 was just living in his property within Machakos County at his will but not as a wife.
“The picture that emerged was not that of a spouse, but of a person accommodated initially as a mother of the respondent’s (Muthama) daughter,” ruled Justice William Musyoka who heard the testimonies of the two parties including their witnesses.
Justice Musyoka maintained that the earlier divorce was still in force stating that reunion was just a mere cohabitation not remarriage.
Kavindu had moved to court in 2014 to stop Muthama from evicting her from the ‘matrimonial home’ on the grounds that she had a right to occupy the home.
Kavindu had claimed that she had been treated inhumanly and deprived of her basic facilities such as water despite the home having two bore holes.
“Since the water was disconnected from the house I have been forced to resort to using water from the swimming pool for washing and bathing,” she claimed.
In documents filed in court, Muthama married Kavindu under Kamba customary law in 1975 and were blessed with three children but the marriage was dissolved by the court in 1983. The senator then had a brief affair with her in 1996 and they got another child, a relationship she termed as a remarriage
She told the court that this was after the senator asked her to quit her job to go take care of the family farm in Mua. It was Kavindu’s case that Muthama turned violent and stopped supporting her financially, a move she claimed that she ended up being isolated completely.
However, in his response, the politician dismissed the remarriage narrative and asserted that the birth of their daughter did not have the effect of reviving the dissolved marriage.
Kavindu’s dowry is said to have been returned when the marriage ended and in 2014, Muthama decided to settle his three families on the Mua property and asked Kavindu to vacate. Muthama who had several political rallies dismissed claims that she campaigned for him, adding that “she only attended some of the meetings, but only as a pastor, not as a wife”.
He also told the court that she attended his father’s funeral as a guest and posed for photographs, adding that she continued to use his name despite the divorce.
In its ruling, the court stated that a party who intends to rely on a custom is obliged to lead evidence to establish that such a custom existed.
This can be done by adducing oral evidence by persons who are familiar with the custom. “None of the parties made any effort to establish whether there was any custom that governed cases of remarriage by parties whose previous customary law marriage between themselves had been dissolved and dowry returned,” he said in the ruling delivered on February 15.
The court dismissed photographs tabled by Kavindu as evidence because she did not accompany them with a certificate signed by whoever took them. “Photographs are a good at painting a portrait that words are not able to conjure. They breathe life to oral narratives and testimonies. They speak louder than words,” the court said when dismissing for failure of being produced in court based on the Evidence Act.
On the issue of the woman being mentioned in the funeral programme as a daughter in-law, the court said this would not mean marriage.
Kavindu through her lawyer, Ms Judy Thongori orally applied to the court to suspend the ruling that also ordered her client to pay Muthama the cost he has incurred in the case pending hearing and determination of the intended appeal.
However, High Court judge Asenath Ongeri allowed her to appeal against the ruling, adding that she should file a formal application within seven days to have the decision suspended. She added that once filed, the document should be served on Muthama who will be at liberty to file his response within another seven days and the matter be heard on April 4 this year.