[2002] KEHC 298 (KLR)
The court found that the Petitioner had proved, beyond reasonable doubt, that the Respondent subjected her and the child to acts of cruelty, including physical assault and battery, as corroborated by medical and police reports. The Petitioner had not condoned the cruelty and had stayed away from the matrimonial home...
Source-derived case information.
- Citation
- [2002] KEHC 298 (KLR)
- Parties
- Applicant: A N W; Respondent: J W N
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 49 of 2001
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved; custody of child to petitioner; costs in the cause.
- Legal Topics
- Divorce, Cruelty, Child Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A N W
Applicant
J W N
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent treated the Petitioner with cruelty sufficient to warrant dissolution of marriage.
- 2 Whether the Petitioner condoned the alleged cruelty.
- 3 Whether the marriage has irretrievably broken down due to the Respondent's conduct.
Ratio Decidendi
The court found that the Petitioner had proved, beyond reasonable doubt, that the Respondent subjected her and the child to acts of cruelty, including physical assault and battery, as corroborated by medical and police reports. The Petitioner had not condoned the cruelty and had stayed away from the matrimonial home for over three years due to the Respondent's conduct, amounting to desertion. The Respondent did not contest the petition or attend the hearing, and thus the evidence of cruelty and desertion stood unchallenged. The court concluded that the marriage had irretrievably broken down and that dissolution was warranted. Custody of the child was awarded to the Petitioner in the best...
Court Disposition
petition allowed; marriage dissolved; custody of child to petitioner; costs in the cause.
Orders
- The marriage between the parties is ordered dissolved and a decree nisi shall issue forthwith.
- The custody of G N W is hereby ordered to the Petitioner.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA DISTRICT REGISTRY
DIVORCE CAUSE NO.49 OF 2001
A N W………………………………………….….PETITIONER
V E R S U S
J W N……………......………………………….RESPONDENT
J U D G M E N T
The Petitioner got married to the Respondent on 25. 11. 1995 at Mombasa. They started the marriage normally. The marriage was solemnized and a certificate of marriage No.[Particulars withheld] issued. It was produced into evidence as exhibit No.1. The marriage was blessed with a child called G N W. He is now about five.
Soon after the usual marriage problem started to occur between the parties. The Petitioner worked in an office with Express Kenya while the Respondent had no job. Then soon thereafter the Respondent started to apparently hearing stories about his wife. He started to lose faith and trust in her. He then started to become cruel to the Petitioner and to the child of the marriage. Petitioner has in her evidence shown instances of cruelty from Respondent. The show serious instances of physical assault and battery. A report from Dr. Frank Obwanda confirmed this. Reports were filed at Makupa Police Station. The same did not only occur to the Petitioner but also to the child. The Petitioner appears to have tried reconciliation, with friends and relatives and through the church but to no avail. The Respondent could even go to her office and cause scenes without minding the humiliation his wife was put into and the possibility of losing her job. However, when Petitioner realized that the Respondent will not change she left the matrimonial home never to return until she petitioned for the dissolution of the marriage.
When the Petitioner filed for the dissolution of the said marriage and served the papers upon her husband the Respondent, the latter chose not to answer. He was served with the hearing notice of this hearing. He chose not to attend. The legal presumption is that he does not oppose the petition.
Thus the evidence of cruelty adduced herein stands unchallenged and shall accordingly be assumed to be true and correct.
I have considered the evidence adduced by Petitioner and accept that it establishes legal cruelty and adequately proves her case beyond a reasonable doubt. It proves that the Respondent treated Petitioner with cruelty and that Petitioner has not condoned same. It proves also that she has stayed away from the matrimonial home for over three years due to the cruel conduct of the Respondent which amounts to desertion. It finally proves that the marriage is so irretrievably broken down that it will never be healed again. What it deserves is a dissolution. I accordingly see no impediments to making orders for dissolution of this marriage. I make the following orders:-
ORDERS:
1. The marriage between the parties is ordered dissolved and a decree nisi shall issue forthwith.
2. The custody of G N W is hereby ordered to the Petitioner.
3. Costs in the cause.
Dated and delivered at Mombasa this 3rd day of June, 2002.
D. A. ONYANCHA
J U D G E