[1998] KEHC 266 (KLR)
The court found that the appellant had established, through evidence, that the respondent left the matrimonial home without his consent and had communicated her intention not to be considered his wife. The respondent's claim of constructive desertion due to cruelty was not pleaded in her answer to the petition and...
Source-derived case information.
- Citation
- [1998] KEHC 266 (KLR)
- Parties
- Appellant: Chrysoston Wanjohi Gikuhi; Respondent: Beatrice Njoki Nduati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 130 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Divorce, Desertion, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chrysoston Wanjohi Gikuhi
Appellant
Beatrice Njoki Nduati
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent deserted the matrimonial home without the appellant's consent.
- 2 Whether the appellant proved grounds for dissolution of marriage based on desertion.
- 3 Whether the respondent's claim of constructive desertion due to cruelty was substantiated.
Ratio Decidendi
The court found that the appellant had established, through evidence, that the respondent left the matrimonial home without his consent and had communicated her intention not to be considered his wife. The respondent's claim of constructive desertion due to cruelty was not pleaded in her answer to the petition and was unsupported by evidence. The trial magistrate's reliance on the respondent's care for their son's family as justification for her absence was not grounded in law or fact. The appellate court concluded that the appellant had proved his case for dissolution of marriage on the ground of desertion, warranting the setting aside of the lower court's judgment and granting of a...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The judgment of the lower court is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 130 ‘B’ OF 1997
CHRYSOSTON WANJOHI GIKUHI.....................................APPELLANT
-versus-
BEATRICE NJOKI NDUATI..................................................RESPONDENT
J U D G M E N T
When this appeal was called out for hearing the respondent was absent. This court being satisfied that the respondent was served with the hearing notice, elected to hear the appeal.
This appeal arose from the decision of the District Magistrate I wherein he dismissed the appellant’s divorce petition. The appellant had sought the dissolution of the marriage with the respondent on the basic ground of desertion. Both parties gave evidence before the subordinate court. The respondent called two witnesses. I have gone through the proceedings, the memorandum of appeal and submission by learned counsel in this appeal.
In his evidence the appellant established that the respondent left the matrimonial home without his consent. The respondent also wrote to say she should not be considered as the wife of the appellant. The respondent also admitted leaving the matrimonial home to go and live in Nairobi with her son.
The respondent tried to allege that the appellant was guilty of constructive desertion. That is to say, she left home as a result of cruelty on the part of the appellant. The answer to the petition was silent on this and her evidence in court remained a mere allegation. The cases cited by the learned counsel for the appellant are in point. See P.G. Patel -v- L.P Patel (1965) E.A 560 AND Butcher -V- Butcher (1947) 1 Acc E.R. 319.
The only reason the learned trial magistrate relied upon in holding hat the respondent has not deserted the petitioner’s home is that “she is taking care of their sons family” with respect the conclusion had no foundation in law of the facts that emerged during the trial. The weight of the evidence adduced shows that the appellant proved his case and judgment ought to have been given in his favour. Accordingly I allow the appeal and set aside the judgment of the lower court. I substitute therefore an order that the marriage between the parties should be dissolved as prayed by the appellant/original petitioner. Each party shall bear own costs.
DECREE NISI shall issue forthwith and may be made absolute on application after expiration of one month from the date hereof.
Orders accordingly.
Dated and delivered at Nairobi this 2nd day of April, 1998.
A. MBOGHOLI MSAGHA
JUDGE