[2009] KEHC 2274 (KLR)
The court found that the Respondent deserted the Petitioner without reasonable cause in September 2003 and did not return to the matrimonial home. The Petitioner filed the petition after the statutory period of three years had lapsed, as required by law. The Respondent did not contest the evidence or provide any...
Source-derived case information.
- Citation
- [2009] KEHC 2274 (KLR)
- Parties
- Petitioner: DLK; Respondent: MWK
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 10 of 2007
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- KH Rawal
- Legal Topics
- Dissolution of Marriage, Desertion, Irretrievable Breakdown, Matrimonial Causes, Decree Nisi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DLK
Petitioner
MWK
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent deserted the Petitioner without reasonable cause.
- 2 Whether the marriage has irretrievably broken down due to desertion.
- 3 Whether the Petitioner is entitled to a decree of dissolution of marriage under the Matrimonial Causes Act.
Ratio Decidendi
The court found that the Respondent deserted the Petitioner without reasonable cause in September 2003 and did not return to the matrimonial home. The Petitioner filed the petition after the statutory period of three years had lapsed, as required by law. The Respondent did not contest the evidence or provide any explanation for her absence. The court was satisfied that the marriage had irretrievably broken down and that the Petitioner had not colluded with the Respondent. Accordingly, the Petitioner proved the ground of desertion under section 8(1)(b) of the Matrimonial Causes Act, entitling him to a decree nisi for dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- Decree nisi for dissolution of marriage granted to the Petitioner.
- Decree nisi to be made absolute within 120 days from the date hereof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
DIVORCE CAUSE 10 OF 2007
DLK ………………………. PETITIONER
VERSUS
MWK ……………………………. RESPONDENT
JUDGMENT
The Present petition was certified as a defended cause as the Petitioner and the Respondent both filed their petition and cross-petition, while denying allegations leveled against each.
On the day of hearing the Petitioner opted to give evidence on and relied on the ground of desertion to seek the order of dissolution of the marriage.
The parties were married on 5th April, 2000 under the Marriage Act (Cap 150). They cohabited as husband and wife at Nairobi only upto September 2003 and did not have any issue of the marriage. According to the Petitioner, the Respondent without any reasonable cause, and him having not given any cause to the event, the Respondent left the matrimonial home in the month of September, 2003. The efforts to reconcile thence have failed. The Respondent did not resume cohabitation since that time.
The Petition by the husband/Petitioner was filed on 26th January, 2007, after the lapse of three year since the desertion. He reiterated that their marriage has, since the desertion, irretrievably broken down.
He denied that he has filed or prosecuted the petition in collusion with the Respondent and prayed for orders of dissolution of the marriage.
In cross-examination, he emphasized that since her desertion, they have not communicated with each other. He reiterated that she just left the matrimonial home and that their marriage was not very congenial one.
The Respondent after the close of the Petitioner’s case, chose not to adduce any evidence.
With this straight forward evidence before me I do find that the marriage between the two parties herein has totally broken down without possibility of any reconciliation, and that the Respondent left the matrimonial home and deserted as averred by the Petitioner.
The petition has been duly filed after the lapse of three years since the desertion of the Respondent. Thus the Petitioner has proved his case as per section 8(1)(b) and Section 10 of the Matrimonial Causes Act (Cap 152).
I thus grant the decree nisi to the Petitioner of the dissolution of the marriage with further direction that this decree nisi be made absolute within 120 days from the date hereof.
I shall also not make any order on costs.
Dated, Signed and delivered at Nairobi, this 4th day of June, 2009.
K.H. RAWAL
JUDGE
4. 6.09