[2014] KEHC 6671 (KLR)
The court found that the marriage between the petitioner and respondent had irretrievably broken down, as evidenced by prolonged separation, lack of cohabitation, and the absence of any challenge or response from the respondent. The court held that there was no longer a viable marital union, but merely a shell of a...
Source-derived case information.
- Citation
- [2014] KEHC 6671 (KLR)
- Parties
- Applicant: A A R; Respondent: R R R
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 24 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed. Decree nisi to issue, to be made absolute within three months. No order as to costs.
- Judges
- JV Juma
- Legal Topics
- Dissolution of Marriage, Matrimonial Offences, Decree Nisi, Separation, Matrimonial Causes Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A A R
Applicant
R R R
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be dissolved under the Matrimonial Causes Act.
- 2 Whether the petitioner has established grounds for divorce as required by law.
- 3 Whether any party is entitled to costs.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent had irretrievably broken down, as evidenced by prolonged separation, lack of cohabitation, and the absence of any challenge or response from the respondent. The court held that there was no longer a viable marital union, but merely a shell of a marriage, and that it would serve no useful purpose to compel the parties to remain married. The requirements of Section 8 of the Matrimonial Causes Act were satisfied, and the petition for divorce was allowed. The court ordered that a decree nisi be issued, to be made absolute within three months, and made no order as to costs.
Court Disposition
Petition for divorce allowed. Decree nisi to issue, to be made absolute within three months. No order as to costs.
Orders
- The marriage between the petitioner and respondent is dissolved.
- A decree nisi to issue, to be made absolute within three months of the judgment date.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 24 OF 2013
A A R …..……….....….…… PETITIONER
VERSUS
R R R .………………….… RESPONDENT
JUDGMENT
By this petition dated 18th April 2013 filed in court on 2nd May 2013 the Petitioner A A R seeks the following prayers:
“(a) THAT the marriage between your petitioner and the Respondent be dissolved and a Decree Nisi be issued.
(b) THAT each party to bear their own costs of this cause”
The Respondent R R R was duly served with the petition and summons. She failed to either enter appearance or to file a response to the petition. The matter therefore proceeded as an undefended cause.
In his evidence the Petitioner told the court that he is currently a musician working at the [particulars withheld] in Kigali Rwanda. He further testified that he married the Respondent on 31st January 1972 in the Registrar’s office in Mombasa. He produces a copy of the Marriage Certificate Serial No. [Particulars withheld] as proof of this fact Pexb1. After the marriage the couple cohabited as man and wife in [Particulars withheld], [Particulars withheld]and [Particulars withheld] in Mombasa. They bore one daughter together who is now an adult aged 31 years and lives in London, United Kingdom. The Petitioner states that the marriage was not a happy one as the couple had several differences. They only stayed together for the sake of the child. For 28 years they occupied separate bed-rooms. From the year 2008 the couple have lived separately. The Petitioner now seeks a dissolution of the marriage.
In this case there has been no evidence to challenge the testimony of the Petitioner. Section 8 of the Matrimonial Causes Act provides the ground upon which a divorce may be granted. Section 8 is basically a ‘fault’ clause which asks the court to find either spouse ‘guilty’ of a matrimonial offence leading to the divorce. This is a case where it appears the parties had problems throughout the marriage and only stayed together for the sake of their child. The said child is now 31 years old and is an independent adult. The couple occupied separate bedrooms for most of their marriage (28 years) and since 2008 have lived separately – that is a period of six (6) years. What exists here is not a vibrant marital union but a mere shell of a marriage. The fact that the Respondent did not bother to reply to the petition is a pointer that she has no wish to remain tied to the Petitioner. All efforts at reconciliation have failed. It serves no useful purpose to compel the couple to remain tied together in matrimonial bonds when clearly they desire otherwise. I therefore allow this petition for divorce. Decree nisi to issue to be made absolute within three (3) months of todays date. No order on costs.
Dated and delivered in Mombasa this 13th day of February 2014.
M. ODERO
JUDGE