[2007] KEHC 3180 (KLR)
The court found that the Petitioner was forced out of the matrimonial home by the Respondent, who subsequently obtained a court order restraining him from returning. The Respondent did not contest these facts or provide any evidence to the contrary. The court accepted the Petitioner's uncontroverted evidence as true...
Source-derived case information.
- Citation
- [2007] KEHC 3180 (KLR)
- Parties
- Applicant: Douglas Ndumia Munga; Respondent: Ann Wanjiru Munga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 106 of 2002
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Legal Topics
- Divorce, Constructive Desertion, Matrimonial Home, Separation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Ndumia Munga
Applicant
Ann Wanjiru Munga
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent is guilty of constructive desertion of the Petitioner.
- 2 Whether the marriage between the parties should be dissolved on the ground of constructive desertion.
Ratio Decidendi
The court found that the Petitioner was forced out of the matrimonial home by the Respondent, who subsequently obtained a court order restraining him from returning. The Respondent did not contest these facts or provide any evidence to the contrary. The court accepted the Petitioner's uncontroverted evidence as true and held that the Respondent was guilty of constructive desertion. As the petition was filed after the statutory period of three years from the date of desertion, the requirements for dissolution of marriage on the ground of desertion were satisfied. The court therefore ordered the dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage solemnized between the parties on 8th January, 1977 is dissolved.
- Decree Nisi to be made absolute within 60 days from the date hereof.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI LAW COURTS)
Divorce Cause 106 of 2002
DOUGLAS NDUMIA MUNGA ……………………… PETITIONER
VERSUS
ANN WANJIRU MUNGA …………………….…… RESPONDENT
JUDGMENT
The Petitioner/husband has filed this cause seeking dissolution of his marriage with the Respondent solemnized on 8th January, 1977.
The only ground on which he seeks the prayer for dissolution is the constructive desertion by the Respondent without reasonable cause.
The marriage was blessed with four children who are now adults.
Both the parties are domiciled in Republic of Kenya. The Respondent has filed an answer, but at the time of hearing of this cause, she chose not to adduce any evidence.
As per the uncontroverted evidence led by the Petitioner, during the month of April, 1996 the Respondent threw the Petitioner out of the matrimonial home and obtained an order dated 23rd July, 1996 in Separation Maintenance Cause No.43 of 1996, which restrained the Petitioner from interfering with her quiet enjoyment of the matrimonial home. Since the date, the Petitioner has not shared matrimonial home and did not have any relation with the Respondent.
The Original Petition dated 15th July, 2002 was amended on 17th February, 2006 in the court.
His allegations and averments as regards the constructive desertion were not challenged either by the Respondent or her Counsel both of whom were present during the hearing.
The Respondent also did not lead any evidence in response to the evidence adduced by the Petitioner.
In the premises, I have no other option but to accept the uncontroverted evidence of the Petitioner as true.
The petition as well as amended one were filed after lapse of three years since the date of desertion and I find that the Respondent is guilty of constructive desertion of the Petitioner.
In the premises, I order that the marriage solemnized between the parties herein on 8th January, 1977 be dissolved.
Decree Nisi be made absolute within 60 days from the date hereof.
Dated and signed at Nairobi, this 9th day of March, 2007.
K.H. RAWAL,
JUDGE
9. 3.07