[2012] KEHC 2675 (KLR)
The court found that the petitioner had proved her allegations of cruelty and desertion against the respondent, and that the marriage had broken down irretrievably. The respondent did not tender any evidence to support his claims, and therefore the petitioner's evidence was uncontroverted. The court held that the...
Source-derived case information.
- Citation
- [2012] KEHC 2675 (KLR)
- Parties
- Petitioner: B.M.K.; Respondent: T.K.K. alias D.K.K.
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 3 of 2008
- Procedural Posture
- Divorce Petition / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of children granted to petitioner. Each party to bear own costs.
- Judges
- GMA Dulu
- Legal Topics
- Divorce, Custody of Children, Irretrievable Breakdown, Cruelty, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B.M.K.
Petitioner
T.K.K. alias D.K.K.
Respondent
Procedural Posture
Divorce Petition / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage on the basis of cruelty and desertion.
- 2 Whether the marriage has broken down irretrievably.
- 3 Who should be granted custody of the children of the marriage.
Ratio Decidendi
The court found that the petitioner had proved her allegations of cruelty and desertion against the respondent, and that the marriage had broken down irretrievably. The respondent did not tender any evidence to support his claims, and therefore the petitioner's evidence was uncontroverted. The court held that the marriage should be dissolved, custody of the two children granted to the petitioner who had been living with them, and that each party should bear their own costs since the respondent did not participate in the proceedings.
Court Disposition
Petition allowed. Marriage dissolved. Custody of children granted to petitioner. Each party to bear own costs.
Orders
- The marriage between the petitioner and the respondent is dissolved. A decree nisi for divorce to issue, to be made absolute after six months.
- The petitioner is granted custody of the two children.
Full Case Text
Judgment text and source record
24 paragraphs
B.M.K …………………………………………………..….. PETITIONER
VERSUS
T.K.K.aliasD.K.K ………...................................……… RESPONDENT
J U D G M E N T
The petitioner B.M.K., filed a petition for dissolution of marriage on 9th December 2008. She alleged cruelty and desertion against the respondent. Particulars of cruelty, desertion and particulars of adultery were given in the plaint. She asked for the following orders:-
(a)The marriage between the petitioner and the respondent be dissolved.
(b)The petitioner be granted custody of the children.
(c)The respondent do bear the cost of the petition.
The petition was served. The respondent filed a replying affidavit and an answer to petition and cross-petition. The respondent claimed that the petitioner was cruel and deserted him. Particulars were given.
Both the petitioner and the respondent, in the documents filed, stated that the marriage had broken down irretrievably, and therefore they wanted the marriage dissolved.
On the hearing date, only the petitioner testified. She gave her side of the story. She also stated that there were two children of the marriage. That marriage was celebrated in 1998 under the Marriage Act Cap 150. That the respondent was currently living with another woman, since 2005, and had another child in that union.
Since the respondent has not tendered any evidence, the version of the petitioner is uncontroverted. The pleadings or assertion of the respondent in documents he filed are mere allegations. Evidence has to be tendered to support them. In the absence of actual evidence, I will not give them weight.
From the evidence on record, I find that the petitioner has proved her allegations. I also find that the marriage has broken down irretrievably. The parties have been living apart for a number of years now, from about 2005. I will therefore, dissolve the marriage. I also find that the petitioner has been living with the two children and will therefore grant her custody. Since the respondent did not bother to come to court to testify, I will order that each party bears their respective costs of the proceedings.
Consequently, I allow the petition and order as follows:-
1. The marriage between the petitioner and the respondent herein is dissolved. A decree nisi for divorce to issue, and same to be made absolute after six (6) months.
2. The petitioner is granted custody of the two children.
3. Each party will bear their respective costs of the proceedings.
It is so ordered.
Dated and delivered at Machakos this 28thday of June 2012.
George Dulu
Judge
In presence of:-
Nyalo – Court clerk
N/A for parties