[2014] KEHC 7295 (KLR)

[2014] KEHC 7295 (KLR)

The court found that the petitioner had not satisfied the statutory requirement of proving desertion for at least three years immediately preceding the presentation of the petition, as required by Section 8(1)(b) of the Matrimonial Causes Act. The evidence showed that the alleged desertion lasted only two years before the petition was filed, rendering the petition premature. Consequently, the court dismissed the petition for divorce on the basis that the legal threshold for desertion had not been met. The court further directed that issues of custody and maintenance of the children be referred to the Children’s Court, and awarded costs to the respondent.

Citation
[2014] KEHC 7295 (KLR)
Parties
Petitioner: E N; Respondent: J K
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
31 January 2014
Case Number
Succession Cause 48 of 2012
Procedural Posture
Divorce Cause / Judgment
Outcome
petition dismissed
Judges
DN Musyoka
Legal Topics
Divorce Petition, Desertion, Custody of Children, Maintenance of Children
Source Language
English
Family and Children Divorce Petition Desertion Custody of Children Maintenance of Children

Case Brief

Summary, issues, holding and outcome

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Parties

E N

Petitioner

J K

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the petitioner proved desertion by the respondent for the statutory period required for divorce under the Matrimonial Causes Act.
  2. 2 Whether the petition for divorce was prematurely filed under the applicable law.
  3. 3 How custody and maintenance of the children should be addressed.

Ratio Decidendi

The court found that the petitioner had not satisfied the statutory requirement of proving desertion for at least three years immediately preceding the presentation of the petition, as required by Section 8(1)(b) of the Matrimonial Causes Act. The evidence showed that the alleged desertion lasted only two years before the petition was filed, rendering the petition premature. Consequently, the court dismissed the petition for divorce on the basis that the legal threshold for desertion had not been met. The court further directed that issues of custody and maintenance of the children be referred to the Children’s Court, and awarded costs to the respondent.

Court Disposition

petition dismissed

Orders

  • The petition dated 14th March 2012 is hereby dismissed.
  • The issue concerning the custody and maintenance of the children of the marriage shall be referred to the Children’s Court.