[2011] KEHC 713 (KLR)
The court found that the Petitioner’s evidence of cruelty and prolonged separation was uncontroverted, as the Respondent withdrew her cross-petition and did not contest the proceedings. The court was satisfied that the marriage had irretrievably broken down, especially given the parties' separation since January...
Source-derived case information.
- Citation
- [2011] KEHC 713 (KLR)
- Parties
- Petitioner: C.M.N; Respondent: K.J.D.N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 45 of 2009
- Procedural Posture
- Divorce Petition / Judgment
- Outcome
- petition granted; marriage dissolved
- Judges
- DK Maraga
- Legal Topics
- Divorce, Irretrievable Breakdown of Marriage, Child Custody, Maintenance, Matrimonial Home
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
C.M.N
Petitioner
K.J.D.N
Respondent
Procedural Posture
Divorce Petition / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and Respondent has irretrievably broken down.
- 2 Whether the Petitioner is entitled to a decree of divorce.
- 3 Whether there are grounds for awarding costs to either party.
Ratio Decidendi
The court found that the Petitioner’s evidence of cruelty and prolonged separation was uncontroverted, as the Respondent withdrew her cross-petition and did not contest the proceedings. The court was satisfied that the marriage had irretrievably broken down, especially given the parties' separation since January 2003 and the absence of any evidence to the contrary. The court therefore granted the petition for divorce and ordered the dissolution of the marriage. Each party was ordered to bear their own costs, as the Petitioner had not sought costs and the court would have been reluctant to award them in any event.
Court Disposition
petition granted; marriage dissolved
Orders
- The marriage between the Petitioner and Respondent is dissolved.
- A decree nisi shall issue forthwith to be made absolute after 30 days.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
DIVORCE CASE NO. 45 OF 2009
C.M.N.........................................................................................................PETITIONER
Versus
K.J.D.N....................................................................................................RESPONDENT
JUDGMENT
This is a divorce petition. The parties married in July 1997 at All Saints Cathedral in Nairobi. Thereafter they lived and cohabited in a house on J[…] Road, L, Nairobi. They were blessed with two children, A.F.N.N born in June 1998 and E.E.M.N born in August 1999.
The Petitioner avers in his petition that throughout their marriage the Respondent has been extremely cruel to him and displayed utter contempt for him and his family members making it extremely difficult for them to communicate. While on a family holiday in Mombasa in December 2002, the Respondent harangued the Petitioner and demanded that on their return to Nairobi the Petitioner should vacate their matrimonial home. To avoid ugly scenes and for the sake of the children of the marriage the Petitioner vacated the matrimonial home in January 2003. Thereafter the Respondent filed Separation Cause No.[..] of 2003 and obtained an order committing the children of the marriage to the custody of both of them with care and control being given to the Respondent. The Petitioner was ordered to pay a greater proposition of the Respondent and the children’s maintenance.
Upon being served the Respondent filed an answer to petition and cross petitioned for divorce but she later withdrew that cross-petition paving the way for the Petitioner to formally prove his petition.
At the hearing the Petitioner reiterated the averments in his petition and added that right from inception the Respondent has had no respect for him or his family. After a quarrel in Mombasa in December 2002 he was, for the sake of their children, forced to accede to the Respondent’s repeated demands and vacated the matrimonial home. They have since not resumed cohabitation. In the circumstances he prays for divorce. He said he has been shouldering the bulk of the Respondent’s and the children’s maintenance and he will continue doing so.
I have considered the matter. As stated the Respondent withdrew her cross-petition and at the hearing she did not appear in court or tender any evidence in opposition to the petition. The Petitioner’s evidence therefore stands uncontroverted. Having considered it, and in particular the fact that the parties have been separated since January 2003, I am satisfied that the marriage between them has irretrievably broken down. In the circumstances I grant this petition and hereby dissolve the marriage between the Petitioner and the Respondent.A decree nisi shall issue forthwith to be absolute after 30 days. The Petitioner having not sought costs which I would in any case have been reluctant to award I order that each party bears its own costs.
DATED and delivered this 15th day of July, 2011.
D.K. MARAGA
JUDGE