Former Machakos Senator Johnston Muthama’s ex-wife, Agnes Kavindu Musyoka, who divorced the politician in 1983, has unsuccessfully tried to stop him from evicting her from his house.
The High Court ruled that she was living on his property in Mua area of Machakos County at his will but not as a wife.
Justice William Musyoka on Friday stated, “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.”
According to documents that were submitted in court, Muthama married Kavindu under the customary law of the Kamba people in 1975 but the marriage was dissolved legally in 1983.
The court ruling was based on the fact that Kavindu failed to prove that they remarried and lived together.
She had, however, sought declarations that Muthama continues to hold certain properties in her trust and that she was entitled to equal share in cash or kind to proceeds of sale or transfer of any property sold.
Kavindu also sought declarations that the respondent accounts for all the income received from the properties and that an injunction be issued to restrain Muthama from evicting her from a property at Mua.
The petitioner claimed that she got remarried to Muthama in January 1995, and they cohabited at a property in Runda, Nairobi. She then quit her job at the request of Muthama to take care of the family farm.
She stated, “We got a fourth child in January 1996 during the course of the resumed cohabitation.”
It was after getting the fourth child that she moved from Runda to the family home in Mua in November 1996.
Muthama, however, maintained that they did not remarry, accusing the woman of non-disclosure. He mentioned that they only had a brief affair in 1996.
Kavindu finds herself in the situation for the second time. She had moved to court in 2014 to stop Muthama from evicting her from their matrimonial home.
In the ruling, the court stated that a party that intended to rely on a custom is obliged to give evidence to establish that such a custom existed. Such can be achieved by adducing oral evidence by persons that are familiar with the custom.
In the ruling on February 15, the judge maintained, “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.”
The court also dismissed evidence of photographs tabled by Kavindu since she did not accompany them with a certificate signed by whoever took them.
“Photographs are good at painting a portrait that words are not able to conjure. They breathe life into oral narratives and testimonies. They speak louder than words,” indicated the court.
