[2013] KEHC 775 (KLR)
The court found that the Petitioner had proved, on a balance of probabilities, the matrimonial offences of cruelty and desertion by the Respondent. The evidence showed that the marriage was not consummated, the Respondent deserted the matrimonial home, and failed to fulfill his marital obligations. The court held...
Source-derived case information.
- Citation
- [2013] KEHC 775 (KLR)
- Parties
- Petitioner: B A L; Respondent: G H G
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 216 of 2012
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed in part
- Judges
- LK Kimaru
- Legal Topics
- Divorce, Matrimonial Offences, Cruelty, Desertion
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
B A L
Petitioner
G H G
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and the Respondent has irretrievably broken down.
- 2 Whether the Respondent treated the Petitioner with cruelty and deserted the matrimonial home.
- 3 Whether the Petitioner is entitled to a decree of divorce and a restraining order against the Respondent.
Ratio Decidendi
The court found that the Petitioner had proved, on a balance of probabilities, the matrimonial offences of cruelty and desertion by the Respondent. The evidence showed that the marriage was not consummated, the Respondent deserted the matrimonial home, and failed to fulfill his marital obligations. The court held that the marriage had irretrievably broken down and there was no possibility of salvage. Consequently, the court dissolved the marriage and issued a decree nisi, to be made absolute in thirty days. The request for a restraining order was denied as there was no evidence of interference by the Respondent.
Court Disposition
petition allowed in part
Orders
- The marriage between the Petitioner and the Respondent solemnized on 9th January 2010 is dissolved.
- A decree nisi dissolving the marriage is issued, to be made absolute thirty days from the date of judgment.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 216 OF 2012
B A L………….…………….......………...........................PETITIONER
-VERSUS-
G H G……..…….….…………..…….........…………………RESPONDENT
JUDGEMENT
The Petitioner and the Respondent were married on 9th January 2010 at the Registrar’s Office in Nairobi. The marriage was celebrated under the Marriage Act. The Petitioner and the Respondent were not blessed with any issue. The Petitioner alleged that since the celebration of the marriage, the Respondent had treated her with cruelty. She stated that the Respondent had also neglected his duties as a husband by failing to provide her basic needs. She accused the Respondent of deserting their matrimonial home shortly after celebration of the marriage. She further accused him of denying her conjugal rights thereby causing her to suffer loneliness. For the above reasons, the Petitioner is of the view that her marriage to the Respondent had irretrievably broken down with no possibility of salvage. The Petitioner urged the court to grant her petition for divorce and make a further order restraining the Respondent from interfering with her life.
The Respondent was served with the petition for divorce. He entered appearance through his advocates but did not file any papers in opposition to the petition for divorce. The Deputy Registrar of this court issued a certificate certifying this cause as suitable to be heard as an undefended divorce cause. The Petitioner testified during the hearing of the divorce cause. She basically reiterated the contents of her petition for divorce. She stated that after the marriage she went back to reside with her mother as she waited for the Respondent to come and pay dowry. She testified that the Respondent never showed up and that his whereabouts were unknown to her. It was her testimony that the marriage was not consummated.
This court was satisfied from the evidence adduced by the Petitioner that indeed her marriage to the Respondent had irretrievably broken down with no possibility of salvage. It was clear from the testimony of the Petitioner that the Respondent is no longer interested in the marriage. A marriage which has not been consummated three (3) years after its celebration cannot be said to be a marriage worth sustaining. This court is of the opinion that the Petitioner has made a case, which proved to the required standard of proof on a balance of probabilities, the matrimonial offences of cruelty and desertion.
In the premises therefore, the marriage between the Petitioner and the Respondent which was solemnized on 9th January 2010 at the Registrar’s Office Nairobi is hereby dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute thirty (30) days from the date of this judgment. This court shall not issue the restraining order sought by the Petitioner against the Respondent given that the Petitioner has not demonstrated that there was any interference by the Respondent. There shall be no orders as to costs. It is so ordered.
DATED AT NAIROBI THIS 22ND DAY OF NOVEMBER, 2013
L. KIMARU
JUDGE