[2014] KEHC 7277 (KLR)
The court found that the respondent had committed acts of cruelty against the petitioner, and that the petitioner's alleged desertion was a consequence of such cruelty. The evidence presented met the legal threshold for cruelty as established in Meme –vs- Meme (1976) KLR 13. The court further determined that the...
Source-derived case information.
- Citation
- [2014] KEHC 7277 (KLR)
- Parties
- Petitioner: E K I M; Respondent: S M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 147 of 2001
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Cruelty, Desertion, Matrimonial Breakdown
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
E K I M
Petitioner
S M M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent was guilty of cruelty towards the petitioner.
- 2 Whether the petitioner deserted the matrimonial home without cause.
- 3 Whether the marriage between the parties has irretrievably broken down.
Ratio Decidendi
The court found that the respondent had committed acts of cruelty against the petitioner, and that the petitioner's alleged desertion was a consequence of such cruelty. The evidence presented met the legal threshold for cruelty as established in Meme –vs- Meme (1976) KLR 13. The court further determined that the marriage had irretrievably broken down, with no evidence of collusion or condonation. Accordingly, the petition for divorce was allowed on the ground of cruelty, and the marriage was ordered dissolved.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage celebrated between the petitioner and respondent on 19th November 1981 is dissolved on the ground of cruelty.
- Decree nisi to issue forthwith, to be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO.147 OF 2001
BETWEEN
E KI M………….……….PETITIONER
AND
S M M…....……….RESPONDENT
JUDGEMENT
The petitioner in this matter married the respondent on 19th November 1981 at a ceremony at the PCEA Church Makupa in Mombasa. A certificate of marriage No. [particulars withheld] was duly issued, copy of which is attached to the petition filed in court in this cause. The couple thereafter cohabited at Voi, Ndara Ranch and Nairobi.
The petition herein was filed in court on 15th August 2001. In it the petitioner accuses the respondent of cruelty, irresponsibility and adultery.
The petition and notice to appear were served on the respondent, and he entered appearance, and filed an answer to the petition and a cross-petition. He denies the allegations levelled against him by the petitioner in her petition, and cross petitioned for divorce on the grounds of cruelty and desertion. He avers that the petitioner continuously treated him and the child of the marriage with cruelty. He has also stated that the petitioner deserted the matrimonial home and has been living in places that the respondent was not aware of.
The matter was cleared for hearing, and was certified to proceed as a defended cause. The matter was heard by Njagi J on 17th May 2012 and 12th July 2012. Both parties testified and gave vent to the allegations made in their respective pleadings.
The petitioner testified on 17th May 2012. She told the court that the respondent had been cruel to her. She gave a detailed account of the various acts of cruelty meted on her on diverse dates. She also gave evidence on the neglect of the child of the marriage by the respondent. She did not lead any evidence on adultery.
The respondent testified on 12th July 2012. He denied being cruel to the petitioner. He also testified that he had not neglected the child of the marriage, but rather that it was the petitioner who kept the child away from him.
6A. I have anxiously gone through the evidence. I am
satisfied that there were acts of cruelty directed at the petitioner by the respondent. I also find that the alleged desertion by the petitioner was occasioned by the cruelty she suffered from the respondent. The evidence on cruelty has reached the threshold set in Meme –vs- Meme (1976) KLR 13.
There is clearly no love lost between the parties. It appears to me that the marriage between the parties has completely broken down. The marriage exists only on paper. It would also appear to me that there has been no collusion between the petitioner and the respondent in bringing these proceedings. There is also no evidence that the petitioner condoned the desertion.
I will allow the petition dated 2nd August 2001 on the grounds of cruelty and dissolve the marriage celebrated between the petitioner and respondent on 19th November 1991. Each party shall bear their own costs.
Decreenisi shall issue forthwith, to be made absolute after thirty (30) days.
DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.
W. MUSYOKA
JUDGE