LEGAL OPINION FOR KEVIN LATEMA AND

WENDI’S CASE.

This is due to the legal opinion you asked for so as to go on with the divorce
finalization that you asked for with your husband Kevin Latema. With this am
going to include the facts and legal issues that the court should put to
consideration as well as application of the law.

PARTIES

1. Kevin Latema.
2. Wendi Wangui .
3. Wangechi . ( Wendi’s sister )
4. Doctors.
5. Wendi’s mother.
6. Kevin’s mother.
7. Couple’s children.
8. Multi-national company.
9. Police officers ( Langata police station.)
10.Paul ( Wendi’s boyfriend.)
11.Kevin’s girlfriend.

VALID FACTS FOR WENDI AND KEVIN LATEMA’S CASE.

June 2002.
 Wendi Wangui and Kevin Latema were married in a church wedding.
 Wendi and Kevin rented a house at Lagata Estate.
 Wendi decided to become a house wife so as to take care of her family.
MARCH 2003.
 Wendi eventually left her matrimonial home and went to stay with her
sister in Westlands.
 Kevin ignored Wendi’s plea that she had been exempted from having
sexual contact by the doctor because of her pregnancy and went ahead
to force himself on her causing her to bleed.
 Kevin slapped Wendi and pushed her several times after inquiring about
the finances of the family.
 Wendi’s mother interceded and called for a meeting and eventually
Wendi agreed to move with her mother-in-law until the baby was born.
 Wendi moved back with Kevin as the couple seemed to have resolved
their problems.

July 2004.
 Kevin latema since he was an Architect he won a contractual deal to
design an office park for multi-national company.
 Kevin was able to buy the house he used to rent in Langata.
 Kevin bought a piece of land worth 5 acre in Kibiku Ngong’.
 Kevin sold his Toyota saloon car.
 Kevin Latema bought a Mercedes Benz for himself and a Toyota Rav 4
for Wendi.
2005.
 Kevin started coming home late severally during the week.
 Kevin slapped Wendi after she inquired about the late coming.
 Kevin started having an affair with a woman he was working with.
 Kevin was in the process of buying an apartment for the woman he was
having an affair with.
 Kevin physically assaulted Wendi leading her to have not only a broken
arm but also with a bruised face after confronting him about the affair
he was having.
 Wendi miscarried due to the assault she had gone through from Kevin.
 Wendi together with her son moved out of her matrimonial home to her
sister’s place for several months.
 2006.

 Both Kevin and Wendi started constructing a luxurious home where they
would live.

2007.
 Home was completed and the couple moved in together.
 The couple got another child which was a girl.
2008.
 Wendi started working as a farmer on a two acre land that was in Kibiku
that earned her up to Ksh.50,000 monthly.
 Wendi took charge of rental property in Langata.
2011.
 Couple acquired more rental property in Ngong’ town such as a block of
8 flats one a one acre plot bought at Ksh. 15 million.
January 2014.
 Kevin was still carrying on with the affair.
 Kevin broke Wendi’s nose.
 Wendi moved out of her matrimonial home again and went to live with
her sister for a whole year.
January 2015.
 Wendi decided to file a divorce with her husband officially in court and
her to be given full custody of the two children in addition to half of the
property.
June 2015
 Wendi was able to acquire a legal separation.
September 2015.
Kevin demanded for conjugal rights and after Wendi refused he forced himself
on her causing Wendi to charge him with rape.
November 2015.
Wendi started an affair with Paul a man he met and claimed to be her true
love.

LEGAL ISSUES.
 Whether there was marriage between Wendi and Kevin.

 Whether Wendi will be given full custody of the children.

 Whether Kevin is guilty of cruelty and adultery.

 The division of their matrimonial property in the occurrence of a divorce.

 Whether Wendi can be granted divorce.

APPLYING THE LAW.

The above issues are going to be solved by applying various sources of law such
as:
a) The Constitution of Kenya 2010 (Article 45 and 60).
b) The Matrimonial Act, 2014.
c) The Marriage Act, 2014.
d) Family law.
e) The Sexual Offences Act, 2006.
f) The Children Act, 2001.
g) Protection Against Domestic Violence Act, 2015.
h) Decision made in the case of Peter Mburu Echaria v Priscilla Mburu
Echaria [2007] eKLR

Whether there existed a marriage between Wendy and Kevin Latema.

 Section 3 of the Marriage Act defines marriage. The validity of a marriage is
set out in section 25 of the Marriage Act of Kenya.
That a valid marriage must be celebrated by a licensed person either by a
Registrar or a Church Minister.
The marriage should also take place in a registered place either done in the
Registrar’s office or a church.
Wendi and Kevin had an intention of contracting a Christian marriage since
they conducted a church ceremony to celebrate their marriage. This is
evident that there was marriage between the two and a proof to the
validity of the marriage.

Whether Wendi will be given full custody of the children.

In Children’s Act of 2008 under Section 82 3(a) a court may make an order
vesting custody of a child if the applicant is a parent or a guardian to the child.
Under Section 83 (1) it provides for the principals to be applied when making a
custody order and the determination made in favour of the applicant.
a. The conduct and wishes of the parent or guardian of the child.
b. Whether the child has suffered any harm or is likely to suffer any harm if
the order is not made.
c. The best interest of the child.

If a divorce is granted to Wendi, she will be given custody of the children

because she is the biological parent of her children and in case of a
conflict between Wendi and Kevin over the custodian of the children,
the court will be in favour of Wendi considering the conduct of Kevin
Latema him being cruel and assaultive to his wife disapproving that he
could be responsible with the children on his own without harming
hence the need for Wendi to be granted full custody of the children.

Whether Wendi can be granted divorce.

In Wendi’s condition it’s evident that she has enough evidence to file for a
divorce .Under the Marriage Act, section 65, a party can apply for a separation
or dissolution of the marriage on the following ground.
 i. Adultery by the other spouse.
ii. Cruelty by the other spouse.
iii. The irretrievable breakdown of the marriage.

According to Wendi and Kevin’s marriage, the marriage was in the process of
breaking down, because Wendi had already moved out together with her
children and went to live with her sister due to the domestic violence that she
went through.
In the issue of adultery, Kevin was having an affair with another woman and
this was the major cause of the breakdown setting a ground for the divorce
that Wendi is seeking.
Cruelty being another ground for divorce, Kevin showed a lot of cruelty in
terms of physical assault when he used to slap Wendi and even breaking her
nose on several inquiries about the affairs of their marriage.

Whether there will be division of Matrimonial property in case of a divorce.

Both Kevin and Wendi had worked hard and were able to acquire property
during the marriage duration. Kevin was able to buy a home in Lang’ata, 5 acre
piece of land, bought a car for himself and Wendi too. In 2006, the couple
managed to construct a huge home for themselves, Wendi also involved
herself in farming activity that brought a lot of income making the couple
acquire more rental property.
According to Matrimonial Property Act subject to Section 6(3), ‘‘the ownership
of matrimonial property vests in the spouses according to the contribution of
either spouse towards its acquisition, and shall be divided within the spouses if
they divorce or their marriage is dissolved.’’ With this, it is therefore definite
that Wendi has a right of equal shares of the matrimonial property.

Whether Kevin is guilty of cruelty and adultery.

Under the Marriage Act, Article 65(b), it states that cruelty, whether mental or
physical that is inflicted by the other party either on the petitioner or children
is a ground for dissolution.
On keen analysis of the order of events, Kevin has showed a lot of cruelty on
her spouse including:
 March 2003 –Kevin slapped Wendi and shoved her several times.
 2005- Kevin slapped Wendi on inquiring about coming home late.
 2005He physically assaulted Wendi bruising her face and breaking her
nose.
 January 2014-Kevin punched Wendi’s face breaking her nose again.
There was also domestic violence within the marriage which is a form of
cruelty since in the Domestic Violence Act, Article 3 , there is also the inclusion
of sexual violence within marriage which is seen when Kevin forces himself on
Wendi even after being aware of her condition which caused Wendi to lose her
unborn child.
Kevin Latema was also guilty of Adultery due to the relationship that he was
having with the woman from his office. Even after Wendi became aware of the
relationship and asked Kevin to put it to a stop, in January 2014, Kevin still
carried on with the affair regardless of his marriage with Wendi.

Peter Mburu Echaria v Priscilla Mburu Echaria decision.

Using the decision in Peter Mburu Echaria v Priscilla Mburu Echaria [2007]
eKLR. Though the Appellant argued that during the period when property was
bought, the Respondent was unemployed and she was not in a position of
making direct contribution, the Superior Court erred in considering the
Respondent’s non-monetary contributions, and granted her equal shares in the
family’s property.
Though the case showed the Act’s unjust aspect, it apparently ignores the
enormous physical burden that wives bear as they raise the children and also
take care of the household in the day – to – day duties that they perform
hence Wendi was also subjected to equal shares of the matrimonial property if
a divorce occurred.
Conclusion
With all the facts and legal issues applied with the application of the law, it is therefore the
decision of the court to decide whether Wendi will be granted a divorce in consideration
with all the evidence provided in favour of Wendi’s wish for an end of her marriage with
Kevin.