[2013] KEHC 5596 (KLR)
The court found that the respondent deserted the petitioner and was guilty of cruelty, including neglect, lack of maintenance, threats, and denial of conjugal rights. The evidence was uncontroverted as the respondent did not defend the petition. The court was satisfied that the marriage had irretrievably broken...
Source-derived case information.
- Citation
- [2013] KEHC 5596 (KLR)
- Parties
- Petitioner: B W W; Respondent: B O N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 27 June 2013
- Case Number
- Divorce Cause 38 of 2012
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Matrimonial Breakdown, Cruelty, Desertion
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
B W W
Petitioner
B O N
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent deserted the petitioner, amounting to grounds for divorce.
- 2 Whether the respondent was guilty of cruelty towards the petitioner.
- 3 Whether the marriage has irretrievably broken down.
Ratio Decidendi
The court found that the respondent deserted the petitioner and was guilty of cruelty, including neglect, lack of maintenance, threats, and denial of conjugal rights. The evidence was uncontroverted as the respondent did not defend the petition. The court was satisfied that the marriage had irretrievably broken down, there was no collusion or condonation, and all efforts at reconciliation had failed. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage celebrated between the petitioner and respondent on 29th August 2006 is dissolved.
- Decree nisi to issue forthwith, to be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 38 OF 2012
BETWEEN
B W W…....…….PETITIONER
AND
B O N…........….RESPONDENT
JUDGEMENT
The petitioner in this matter married the respondent on 29th August 2006 at a ceremony at a ceremony at the Attorney-General’s Chambers in Nairobi. A certificate of marriage No. (withheld) was duly issued, copy of which is attached to the petition filed in court in this cause. The couple thereafter cohabited at (withheld). There are no issues of the marriage.
The petition herein was filed in court on 8th March 2012. In it the petitioner accuses the respondent of desertion and cruelty towards her. The respondent is said to have deserted the matrimonial home since 2008. During the period, the respondent is said to have had no interest at all towards the petitioner. The particulars of cruelty are itemised in the petition – neglect, lack of maintenance, ungovernable temper, threats to assault the petitioner and denial of conjugal rights.
The petition and the notice to appear were served on the respondent, on 6th August 2012. There is an affidavit of service on record filed in court on 3rd September 2012, as an annexture to the application for the Registrar’s certificate. The respondent did not appear nor file an answer to the petition, and therefore the cause was cleared by the Deputy Registrar on 25th October 2012 to proceed as an undefended cause.
The petitioner testified on 18th April 2013. She complained that the respondent left the matrimonial home in 2006 and never came back. She contacted him but he never came back. He never explained why he left; his quitting meant that she was not able to enjoy conjugal connection with him. It later emerged that he had another family elsewhere. She mentioned the cruelty – verbal insults and the threats of a beating whenever she questioned him on his excessive drinking and being away most of the time. She also complained of lack of support and maintenance – when she lost her job, he was not there to provide for her and she had to seek solace at her mother’s home. She said that communication has ended and for all practical purposes there is no marriage. All efforts to reconcile have failed. This evidence was not controverted.
It appears to me that the marriage between the parties has completely broken down. It would also appear to me that there has been no collusion between the petitioner and the respondent in bringing these proceedings. There is also no evidence that the petitioner has condoned the cruelty and desertion.
I will allow the petition dated 2nd March 2012. The marriage celebrated between the petitioner and respondent on 29th August 2006 is hereby dissolved. Decreenisi shall issue forthwith, to be made absolute after thirty (30) days. There will be no orders as to costs.
DATED, SIGNED and DELIVERED AT NAIROBI THIS 27th DAY OF June 2013.
W.M. Musyoka
JUDGE