[2008] KEHC 2898 (KLR)
The court found that the Petitioner had proved, on a balance of probabilities, that the Respondent deserted the matrimonial home without reasonable cause and that there had been no resumption of cohabitation or communication. The evidence was uncontroverted and credible. The court was satisfied that the statutory...
Source-derived case information.
- Citation
- [2008] KEHC 2898 (KLR)
- Parties
- Applicant: C.W.G; Respondent: P.K.C
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 23 of 2007
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of children granted to Petitioner. Costs awarded to Petitioner. Leave to apply for maintenance granted.
- Judges
- KH Rawal
- Legal Topics
- Divorce, Child Custody, Matrimonial Desertion
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
C.W.G
Applicant
P.K.C
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent deserted the Petitioner without reasonable cause.
- 2 Whether the marriage should be dissolved on grounds of desertion.
- 3 Who should have care, control, and custody of the children of the marriage.
Ratio Decidendi
The court found that the Petitioner had proved, on a balance of probabilities, that the Respondent deserted the matrimonial home without reasonable cause and that there had been no resumption of cohabitation or communication. The evidence was uncontroverted and credible. The court was satisfied that the statutory requirements for dissolution of marriage on grounds of desertion were met. The Petitioner was also entitled to custody of the children, as they had been living with her since the Respondent's desertion, and their welfare was best served by remaining in her care. The court granted leave for the Petitioner to apply for maintenance and awarded her the costs of the petition.
Court Disposition
Petition allowed. Marriage dissolved. Custody of children granted to Petitioner. Costs awarded to Petitioner. Leave to apply for maintenance granted.
Orders
- The marriage solemnized between the parties on 20th December, 1994 is dissolved.
- Care, control and custody of the children D.K and P.K is granted to the Petitioner.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 23 of 2007
C.W.G …………………… PETITIONER
VERSUS
P.K.C…………………………. RESPONDENT
JUDGEMENT
The Petition filed by the wife was duly certified as an undefended cause.
At the hearing of the cause the Petitioner testified that she married the Respondent on 20th December, 1994 by producing the marriage certificated.
The couple then cohabited at Nairobi and Kericho upto 2001.
The marriage was blessed with two more children born on 10th February, 1975 and 19th November, 1996. Their names are D.K and P.K respectively.
Around May, 2001 the Respondent/husband without any sufficient or reasonable explanation or excuse left the matrimonial home and deserted the Petitioner and the two children who are since then, living with and taken care of by the Petitioner.
According to the Petitioner since the desertion, the Respondent has neither communicated with her or with any of the children. She heard that at present he lives at Ongata Rungai.
She consented that there is no resumption of matrimonial relation since the desertion by the Respondent.
She denied that she has condoned or connived at the act of desertion or was an accessory thereto. She also denied that she has presented and/or prosecuted this petition in collusion with the Respondent.
She then prayed that the marriage be dissolved and the care, control and custody of two children be granted to her. She asked for maintenance for her and children and costs of the petition.
Her uncontroverted evidence was very candid and straightforward. I do believe the same and make following orders:
1. The marriage solemnized between the parties on 20th December, 1994 be dissolved.
2. Care, control and custody of children of marriage namely D.K and P.K be granted to the Petitioner.
3. Decree nisi be made absolute within 45 days from the date hereof.
4. Costs of this petition to the Petitioner.
I also grant leave to the Petitioner to file appropriate application for maintenance.
Dated and signed at Nairobi this 21st day of February, 2008.
K.H. RAWAL
JUDGE
21. 2.08