[2002] KEHC 289 (KLR)
The court found that the petitioner had proved, on oath and without rebuttal, that the respondent committed adultery with another woman, deserted the matrimonial home, and subjected the petitioner to cruelty by abandoning her after the death of their child and during her recovery from surgery. The respondent's...
Source-derived case information.
- Citation
- [2002] KEHC 289 (KLR)
- Parties
- Petitioner: A W; Respondent: J M M
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 13 of 2002
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Legal Topics
- Dissolution of Marriage, Adultery, Cruelty, Desertion
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
A W
Petitioner
J M M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage under Kenyan law.
- 2 Whether the respondent committed adultery and cruelty as alleged by the petitioner.
- 3 Whether the marriage has irretrievably broken down.
Ratio Decidendi
The court found that the petitioner had proved, on oath and without rebuttal, that the respondent committed adultery with another woman, deserted the matrimonial home, and subjected the petitioner to cruelty by abandoning her after the death of their child and during her recovery from surgery. The respondent's failure to respond or appear in court meant the petitioner's evidence stood unchallenged. The court concluded that the marriage had irretrievably broken down due to the respondent's conduct and granted the dissolution of the marriage, issuing a Decree Nisi and ordering the respondent to pay the costs of the petition.
Court Disposition
petition allowed; marriage dissolved
Orders
- Decree Nisi granted dissolving the marriage solemnised on 27th December 1997 between the petitioner and the respondent.
- Respondent to pay costs of the petition.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA DIVORCE CAUSE NO.13 OF 2002
A W……………….……………… PETITIONER VERSUS J M M …………………….….……………. RESPONDENT JUDGMENT
The Petition herein, filed by A W on 14th May 2002 is seeking that the marriage solemnised on 27th December 1997 at Shanzu Catholic Church be dissolved.
Only the Petitioner gave evidence as the Respondent though served with all documents, did not file any answer to the Petition and did not attend court on the hearing of the Petition.
The Petitioner in her evidence to the court stated that she was married to the Respondent on 27th December 1997 at Shanzu Catholic Church. She produced Marriage Certificate No. [particulars withheld] as exhibit. After marriage she developed some health problems as her pregnancies were not normal ones and she had problems.These necessitated medical expenses. She however gave birth to one child but that child died in infancy. Thus they now do not have any child. On 11th January 2001, the Respondent deserted matrimonial home and is now living with another woman called Irene Jilani with whom the Respondent has been committing adultery and he is still continuing to commit adultery with her. The Respondent abandoned her immediately their child died. The Respondent took all his belongings and left matrimonial home. This has caused her a lot of stress and depression particularly as he left her when she had just had an operation which had not yet healed.
All these allegations made on oath have not been rebutted. I do find that cruelty has been proved as well as adultery. The marriage seems to have broken down irretrievably.
I grant the prayer for dissolution of the marriage solemnised between the Petitioner and the Respondent on 27th December 1997. Thus Decree Nisi is granted. The Respondent is condemned to pay costs of this Petition.
Dated at Mombasa this 3rd Day of September 2002.
J. W. ONYANGO OTIENO JUDGE