[2010] KEHC 560 (KLR)

[2010] KEHC 560 (KLR)

The court found that the petitioner had proved, on a balance of probabilities, that the respondent committed adultery by cohabiting with F.M between 2000 and 2005, as the respondent did not attend court to disprove the allegation. Although no physical cruelty was established, the court recognized that cruelty encompasses more than physical violence and includes conduct causing mental anguish. The evidence of cruelty was not sufficiently proved, but the uncontroverted evidence of adultery and the breakdown of the marriage justified the grant of a decree of divorce. The marriage was found to have irretrievably broken down, and the petitioner was granted custody of the children.

Citation
[2010] KEHC 560 (KLR)
Parties
Applicant: D.A; Respondent: Dr. C.A
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
15 December 2010
Case Number
Divorce Cause 13 of 2009
Procedural Posture
Divorce Cause / Judgment
Outcome
Decree nisi for divorce granted; custody of children awarded to petitioner; each party to bear own costs.
Judges
PM Mwilu
Legal Topics
Divorce, Matrimonial Offences, Adultery, Cruelty, Custody of Children
Source Language
English
Family and Children Divorce Matrimonial Offences Adultery Cruelty Custody of Children

Case Brief

Summary, issues, holding and outcome

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Parties

D.A

Applicant

Dr. C.A

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the respondent committed acts of cruelty against the petitioner.
  2. 2 Whether the respondent committed adultery during the subsistence of the marriage.
  3. 3 Whether the marriage has irretrievably broken down and should be dissolved.

Ratio Decidendi

The court found that the petitioner had proved, on a balance of probabilities, that the respondent committed adultery by cohabiting with F.M between 2000 and 2005, as the respondent did not attend court to disprove the allegation. Although no physical cruelty was established, the court recognized that cruelty encompasses more than physical violence and includes conduct causing mental anguish. The evidence of cruelty was not sufficiently proved, but the uncontroverted evidence of adultery and the breakdown of the marriage justified the grant of a decree of divorce. The marriage was found to have irretrievably broken down, and the petitioner was granted custody of the children.

Court Disposition

Decree nisi for divorce granted; custody of children awarded to petitioner; each party to bear own costs.

Orders

  • A decree nisi for divorce is granted and shall be made absolute after three months.
  • The petitioner is granted custody of the children of the marriage.