[2013] KEHC 3837 (KLR)
The court found that the petitioner and the 1st respondent had lived separately for over eleven years, during which the petitioner was denied conjugal rights. This prolonged separation and denial of marital rights constituted both desertion and cruelty under Kenyan law, justifying the dissolution of the marriage....
Source-derived case information.
- Citation
- [2013] KEHC 3837 (KLR)
- Parties
- Applicant: D.O.O; Respondent: J.W.M; Respondent: W.W
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 4 of 2011
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce granted; cross-petition dismissed; costs awarded to petitioner; no further orders on child custody.
- Legal Topics
- Divorce, Desertion, Cruelty, Child Custody, Cross Petition, Conjugal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
D.O.O
Applicant
J.W.M
Respondent
W.W
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has established grounds for dissolution of marriage under Kenyan law.
- 2 Whether the respondent's cross-petition is supported by evidence.
- 3 Whether the petitioner is entitled to costs.
Ratio Decidendi
The court found that the petitioner and the 1st respondent had lived separately for over eleven years, during which the petitioner was denied conjugal rights. This prolonged separation and denial of marital rights constituted both desertion and cruelty under Kenyan law, justifying the dissolution of the marriage. The respondent's cross-petition was dismissed due to lack of evidence, as she neither attended the hearing nor presented supporting testimony. The court declined to make further orders on child custody, noting that two children were adults and the other two had been living with their mother for nine years, with custody issues already addressed by the Children's Court. Costs were...
Court Disposition
Petition for divorce granted; cross-petition dismissed; costs awarded to petitioner; no further orders on child custody.
Orders
- The marriage between the petitioner and the 1st respondent is dissolved.
- The cross-petition by the 1st respondent is dismissed with costs to the petitioner.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
Divorce Cause 4 of 2011
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D.O.O :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER
VERSUS
J.W.M ::::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT
W.W :::::::::::::::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT
JUDGEMENT
The Petitioner, D.O.O came to this court on 3rd June, 2011, seeking the dissolution of the movital union between him and his wife, J.W.M.
The Petition was served upon both the wife of the petitioner and the co-respondent, W.W.
The wife to the petitioner filed a Answer to the Petition, coupled with a Cross-Petition.
In the answer to the Petition, the 1st Respondent confirmed that she and the Petitioner had not lived together for almost ten (10) years.
However, the 1st Respondent categorically denied the assertions that she had committed adultery with the correspondent. She also denied the petitioner's assertions of cruelty.
The 1st Respondent's contention was that it was the petitioner who had committed adultery. The said adultery is said to have led to the physical separation between the Petitioner and the 1st Respondent, from the year 2002.
When the case came up for trial, the Respondents failed to attend court. However, because I was satisfied that they had been duly served, the trial proceeded.
The petitioner testified on oath, and said that the 1st Respondent had sought a transfer from Eldoret to Nairobi in March, 2002.
Thereafter, the 1st Respondent returned to Eldoret in December, 2004, and she took away all the four children of their marital union.
As the Respondents did not attend court at the hearing, the evidence tendered by the Petitioner was uncontroverted. Furthermore, and in any event, the 1st Respondent confirmed, in her Response to the Petition, that she had not lived with the Petitioner for about 10 years. As her said Response was filed on 7th February, 2012, it implies that by 11th March, 2013, when the Petition came up for hearing, the two parties had been living separate lives for over eleven (11) years.
During that whole period of time, the Petitioner has been denied his conjugal rights. That fact constitutes both desertion as well as cruelty. That alone is sufficient ground to justify the grant of the divorce sought by the petitioner. Accordingly, I do now grant an order dissolving the marriage between the Petitioner and the 1st Respondent.
Meanwhile, as no evidence was led by the 1st Respondent to prove any of the assertions set out in her cross-petition, the said cross-petition is dismissed, with costs to the Petitioner.
The costs of the Petition are also awarded to the Petitioner.
As regards the custody of the children, I note that A.M.O and N.N.O are already above the age of 18. They therefore have the legal right and authority to make their own decisions about who they wish to relate to, and in what manner.
By the Petitioner's own admission, the children have all lived with their mother from the year 2004. That is a period of about nine (9) years.
The Petitioner has not led any evidence to justify an order to suddenly uproot the two younger children from their mother.
In any event, there have been separate legal proceedings before the Children's Court, addressing the issue of the custody of the children in question. If either of the parties were dissatisfied with such orders made by the Children's Court, they would move the court appropriately. For now, I decline to make any other orders on the issue of the custody of M.B.O and C.N.O.
DATED SIGNED AND DELIVERED AT ELDORET
THIS 15TH DAY OF APRIL, 2013.
FRED A. OCHIENG
JUDGE
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