[2005] KEHC 2004 (KLR)

[2005] KEHC 2004 (KLR)

The court found that the petitioner failed to prove adultery to the required standard, as the alleged adulterer was neither identified nor made a co-respondent. However, the court was satisfied that the respondent had proved desertion by the petitioner, who had left the respondent without reasonable cause for more than three years prior to the petition. The court held that the essential elements of desertion—de facto separation, animus deserendi, absence of consent, and lack of reasonable cause—were established. The marriage was found to have irretrievably broken down due to the petitioner's desertion. The court granted custody of the child to the respondent, with unlimited access to the...

Citation
[2005] KEHC 2004 (KLR)
Parties
Petitioner: E.W; Respondent: A.W.M
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
14 July 2005
Case Number
Divorce Cause 126 of 2003
Procedural Posture
Divorce Cause / Judgment
Outcome
Petition for divorce allowed on ground of desertion; marriage dissolved; custody, maintenance, and costs awarded to respondent.
Legal Topics
Divorce, Desertion, Custody of Children, Maintenance Orders
Source Language
English
Family and Children Divorce Desertion Custody of Children Maintenance Orders

Case Brief

Summary, issues, holding and outcome

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Parties

E.W

Petitioner

A.W.M

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the petitioner proved adultery as a ground for dissolution of marriage.
  2. 2 Whether the respondent proved desertion by the petitioner as a ground for dissolution of marriage.
  3. 3 Whether the marriage has irretrievably broken down.

Ratio Decidendi

The court found that the petitioner failed to prove adultery to the required standard, as the alleged adulterer was neither identified nor made a co-respondent. However, the court was satisfied that the respondent had proved desertion by the petitioner, who had left the respondent without reasonable cause for more than three years prior to the petition. The court held that the essential elements of desertion—de facto separation, animus deserendi, absence of consent, and lack of reasonable cause—were established. The marriage was found to have irretrievably broken down due to the petitioner's desertion. The court granted custody of the child to the respondent, with unlimited access to the...

Court Disposition

Petition for divorce allowed on ground of desertion; marriage dissolved; custody, maintenance, and costs awarded to respondent.

Orders

  • Decree of divorce granted; marriage dissolved.
  • Decree nisi to issue, to be made absolute upon application.