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No-nonsense judge who wants women to pay upkeep to divorced men

Historic case

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A three-judge bench of the Kenyan Court of Appeal failed to reach unanimous ruling in a case where a husband was demanding upkeep from his former wife in the same way that women seek alimony from their ex-husbands.

Justice Erastus Githinji ruled that he was convinced by the need to change the gender roles where men are supposed to pay upkeep to their former wives regardless of who earned more.

“It is my humble view that the so-called traditional gender role has been superseded by the provisions of the Constitution and Marriage Act, 2014 and is not a relevant factor in determining whether or not an order for maintenance should be made in favour of a husband,” Justice Githinji’s ruling read in part.

The judge based his argument on the basis that Kenyans have enacted a constitution that affirms marriage to be made of equals, and it would therefore be unfair to deny the chance for men to claim maintenance from their wives, just as women are allowed to demand alimony in divorce cases.

The majority ruling, which is binding, maintained that men should not use divorce as a chance to improve their standards of living by relying on their hard-working spouses.

Although minority rulings are not binding, they are critical in developing jurisprudence which can be used in making legal arguments in subsequent cases.

Justice Githinji was the only male judge in the three-judge bench which also included Justices Hannah Okwengu and Jamila Mohamed.

“It would be against public policy to encourage a situation where a spousal maintenance order is granted to a man for the simple reason that the woman has proved more industrious than the man”.

“The order of maintenance issued in favour of the respondent is nothing more than the sword of Damocles hanging over the appellant’s head to remind her of her failed marriage. Such an order is neither fair nor just,” the two judges stated in the binding ruling.

The matter came about after a woman appealed a ruling where she had been ordered to pay Sh20,000 to her former husband who earned less than her.

The woman was a successful lecturer teaching at a South African University while the man was a stay-at-home husband who told the court that he had supported to build his wife’s career.

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