[2005] KEHC 2720 (KLR)
The court found that the petitioner had proved, on a balance of probabilities, that the respondent deserted the matrimonial home and engaged in conduct amounting to adultery by cohabiting with another person. The respondent did not contest the petition or defend her cross petition. Both parties had been separated...
Source-derived case information.
- Citation
- [2005] KEHC 2720 (KLR)
- Parties
- Petitioner: B B; Respondent: C W M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 98 of 1999
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- FI Koome
- Legal Topics
- Dissolution of Marriage, Desertion, Adultery, Irretrievable Breakdown, Cross Petition, Matrimonial Cohabitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B B
Petitioner
C W 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 desertion and adultery by the respondent have been established.
- 3 Whether the marriage has irretrievably broken down.
Ratio Decidendi
The court found that the petitioner had proved, on a balance of probabilities, that the respondent deserted the matrimonial home and engaged in conduct amounting to adultery by cohabiting with another person. The respondent did not contest the petition or defend her cross petition. Both parties had been separated for over three years prior to the filing of the petition, and both sought dissolution of the marriage. The court was satisfied that the marriage had irretrievably broken down and that the petitioner had not condoned the respondent's conduct nor colluded in the petition. Accordingly, the court granted a decree of divorce and ordered the dissolution of the marriage solemnized on...
Court Disposition
petition allowed; marriage dissolved
Orders
- Decree of divorce granted dissolving the marriage solemnized on 27th May 1994.
- Decree nisi to issue for a period of three months.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
DIVORCE CAUSE NO. 98 OF 1999
B B……………………………….PETITIONER
VERSUS
C W M………………………...RESPONDENT
JUDGMENT
The petitioner in this Divorce Cause sought for order of dissolution of the marriage that was solemnized between him and the respondent on 27th May 1994 at the Registrar’s Office in Nairobi.
Upon marriage both parties who are domiciled in the Respublic of Kenya resided at Hurlingham, Mbuthia Flats, Chania Road, between 1994 to 1995 and moved to Matumbato Estate, Upper Hill until 1996 cohabitation used in June 1997.
There are no issues to the said marriage. The respondent filed an answer and cross petition but did not attend the court during the hearing to defend the same.
During the hearing, the petitioner gave evidence in support of the petition and reiterated the particulars of desertion and adultery contained under paragraph 7 of the petition.
According to the petitioner, the respondent deserted the matrimonial home at first to attend a training program with UNCHR in Geneva for eight(8) months immediately after marriage. Subsequently the respondent spent two years on UN assignments in Bosnia and Herzegovinia and extended the contract indefinitely.
The petitioner pleaded with the respondent to resume cohabitation without success, according to the petitioner, the marriage is irretrievably broken down as the respondent is co-habiting with the co-respondent as husband and wife.
The petitioner sought for the dissolution of the marriage as he claims that he has not condoned the acts of desertion nor has this petition been brought through collusion but for reasons complained about above.
I have carefully considered the evidence by the petitioner which was not at all challenged. I have nevertheless considered that the respondent cross-petition for divorce although she did not attend court to defend her cross petition.
Whichever way one looks at this matter both parties are seeking for divorce. The parties have been separated for a period of more than three years prior to the filing of this petition.
I am satisfied that the petitioner has been able to prove his case to the required standard.
In the premises, I hereby pronounce the decree of divorce and dissolve the marriage that was solemnized on 27th May 1994. The decree nisi shall issue for a period of three (3) months.
Each party shall bear their own costs.
It is so ordered.
Judgment read and signed on 18th day of March 2005.
MARTHA KOOME
JUDGE