[2014] KEHC 5496 (KLR)
The court found that the petitioner had established, on a balance of probabilities, that the respondent committed adultery with C G, as evidenced by the respondent's own admission in a letter and the absence of any denial or defence. The marriage was deemed to have irretrievably broken down, with no evidence of...
Source-derived case information.
- Citation
- [2014] KEHC 5496 (KLR)
- Parties
- Petitioner: E M M; Respondent: M P L
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 44 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Adultery, Custody of Children, Matrimonial Breakdown
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E M M
Petitioner
M P L
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent committed adultery as alleged by the petitioner.
- 2 Whether the marriage between the petitioner and respondent has irretrievably broken down.
- 3 Whether there was collusion or condonation of adultery by the petitioner.
Ratio Decidendi
The court found that the petitioner had established, on a balance of probabilities, that the respondent committed adultery with C G, as evidenced by the respondent's own admission in a letter and the absence of any denial or defence. The marriage was deemed to have irretrievably broken down, with no evidence of collusion or condonation by the petitioner. The court therefore granted a decree nisi for dissolution of the marriage, awarded joint custody of the children with actual custody to the petitioner, and directed that further issues of access and maintenance be addressed by the Children’s Court.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage celebrated between the petitioner and respondent on 1st May 1999 is dissolved.
- Joint custody of the children is granted to both parties, with actual custody to the petitioner.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 44 OF 2013
BETWEEN
E M M.……..…….…..PETITIONER
AND
M P L……….………..RESPONDENT
JUDGEMENT
Marriage was celebrated between the parties herein on 1st May 1999 at Amsterdam, the Netherlands. An extract from the marriage registration number[particulars withheld] is attached to the petition. The couple thereafter cohabited at Karen in Nairobi, Kenya, as husband and wife. The couple was blessed with two issues – O G H L and F H M L, born in 2000 and 2001, respectively.
The petition in this matter was filed in court on 25th February 2013. The petitioner accuses the respondent of adultery. The particulars of adultery are that the respondent had been prior to the presentation of the petition in a sexual liaison with a C G for the period between 2007 and 2012. As a consequence of the adultery, the petitioner pleads that she left the matrimonial home in April 2011.
The petition was served on the respondent on 28th February 2013, there is an affidavit of service on record sworn by V Wangui Shaw, Advocate, on 23rd March 2013 and an acknowledgement of service signed by the respondent and dated 28th February 2013. The respondent did not however enter appearance nor file an answer to the petition. On 11th April 2013 the Deputy Registrar certified that the matter proceeds for hearing as an undefended cause. As there is no reply to the petition, the petitioner’s allegations, as made in the petition, remain uncontroverted.
The petitioner testified on 10th October 2013 and gave vent to the allegations made in her petition. She placed before the court a letter dated March 2011 allegedly signed by the respondent in which he expressly admits the sexual affair alleged between him and C G. No counter evidence was given by the respondent, and therefore the petitioner’s story was not controverted.
It would appear to me that the marriage between the parties herein has irretrievably broken down. It would also appear to me that there has been no collusion between the petitioner and the respondent in the bringing of these proceedings. There is also no evidence that the petitioner has condoned the adultery.
The orders that I am disposed to make are as follows:-
That I hereby dissolve the marriage celebrated between the petitioner and respondent on 1st May 1999;
That I grant joint custody of the children of the marriage to both parties, but the petitioner shall retain custody of the said children;
That any further orders touching on access to and maintenance of the children shall be sought from the Children’s Court
Decreenisi shall issue forthwith, and may be made absolute after thirty (30) days.
There will be no orders as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 25th DAY OF April, 2014.
W MUSYOKA
JUDGE
In the presence of………………………….advocate for the petitioner.
In the presence of………………………….advocate for the respondent.