The Milimani Law Courts in Nairobi
Justice GBM Kariuki directed the order be executed by the officer in-charge of the police station near Philip’s residence unless he pays in full all the maintenance due from him to date.
Justice Kariuki granted the order after Rosanna Pluda who has filed divorce proceedings sought to have Philip committed to civil jail for failing to pay her maintenance.
Through lawyer Judy Thongori, Pluda claimed that Philip has refused to honour the obligation despite a court order compelling him to pay the amount.
Justice Kariuki pointed out there was no evidence tendered that he has paid the money ordered by the court.
The orders, Justice Kariuki held, were not made in vain and court litigations are not matters to joke about.
“There is no evidence to show that he is not capable of paying. On the contrary, there is evidence to show that he has the wherewithal but he continues to default in paying,” the judge said.
“He is unwilling to pay unless compelled to do so that is why I am inclined to allow the application by the petitioner because he is not unable to pay the money he owes by way of maintenance.”
Justice Kariuki observed that civil jail is meant to deprive the debtor of freedom in the hope that he will pay so as to regain it.
He added that it is resorted to because the creditor is unable to trace or lay his hands on assets of the debtor that can be attached.
“It is regrettable that Moi has failed to shoulder his obligation as a husband and a father and has allowed the matter to drift to this level,” the judge said.
“It is the duty of this court to ensure that the rights of the petitioner and her children are enforced and redress obtained. The law shall be enforced without fear or favour against all regardless of their social status.”
At the same time the judge dismissed Mo’s application seeking to set aside orders requiring him to pay Sh250,000 a month when Pluda has custody of the children and Sh150,000 when alone.
Justice Karikui said the court cannot grant a stay order stopping an obligation to maintain a spouse and her children whose needs cannot wait the outcome of an appeal.
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