[2004] KEHC 1685 (KLR)
The court found that the Petitioner had proved, on a balance of probabilities, that the First Respondent had been persistently cruel during the subsistence of the marriage. The evidence adduced was sufficient to establish cruelty as a ground for dissolution. There was no adequate evidence to support the ground of...
Source-derived case information.
- Citation
- [2004] KEHC 1685 (KLR)
- Parties
- Applicant: F W M; Respondent: J O O; Respondent: C N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 91 of 2003
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed; marriage dissolved; custody granted to Petitioner; costs to be paid by First Respondent.
- Legal Topics
- Divorce, Cruelty, Adultery, Custody of Children
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
F W M
Applicant
J O O
Respondent
C N
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and the First Respondent should be dissolved on grounds of cruelty and adultery.
- 2 Whether the Petitioner is entitled to custody of the children of the marriage.
- 3 Whether there was any collusion, connivance, or condonation by the Petitioner.
Ratio Decidendi
The court found that the Petitioner had proved, on a balance of probabilities, that the First Respondent had been persistently cruel during the subsistence of the marriage. The evidence adduced was sufficient to establish cruelty as a ground for dissolution. There was no adequate evidence to support the ground of adultery. The court was also satisfied that there was no collusion, connivance, or condonation by the Petitioner. Consequently, the marriage had irretrievably broken down due to cruelty, warranting the grant of a decree of divorce. Custody of the eligible children was granted to the Petitioner, and the Petitioner was given liberty to apply for maintenance orders. Costs were...
Court Disposition
Petition allowed; marriage dissolved; custody granted to Petitioner; costs to be paid by First Respondent.
Orders
- A decree nisi is issued dissolving the marriage between the Petitioner and the First Respondent, to be made absolute upon application.
- Custody of the eligible children of the marriage is granted to the Petitioner.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI DIVORCE CAUSE NO 91 OF 2003
F W M………………………..…PETITIONER
VERSUS
J O O’………………………1ST RESPONDENT
C N………………...…..…..2ND RESPONDENT
JUDGMENT
On 1st July 2003 F W M filed this Petition against J O O for dissolution of their marriage formally solemnized on 9th November 1994 and also cited C N as the Second Respondent thereto. Prior to the formalisation of the said marriage, the Petitioner and the 1st Respondent had cohabited as man and wife since 1985.
The Petitioner’s marriage to the Respondent was conducted at the Office of the Registrar of Marriages in Nairobi under the provisions of the Marriage Act (Cap 150). A certificate of marriage number [particulars withheld] was issued by the presiding Marriage Officer. Subsequently, the Petitioner and the 1st Respondent continued cohabitation as man and wife, and established a matrimonial home at Kahawa Army Barracks in Nairobi. According to the Petitioner, the said marriage was blessed with three children namely: J N born in 1986; E B born in 1988 and J N born in 1990.
The Petitioner seeks for dissolution of the said marriage to the Respondent on grounds of cruelty and adultery as particularized in paragraphs 9 and 10 of the said Petition. Upon being served with a copy of the Petition and Notice to Appear, the First Respondent duly entered appearance but failed to file an Answer within the time prescribed by the relevant Rules. The second Respondent did not either enter Appearance nor file an Answer to these proceedings. When the Petition came for hearing on 15th January 2004 the said Respondents were absent and thus the hearing proceeded as undefended cause.
I have carefully considered the testimony of the Petitioner. I have also scrutinized and inquired into the alleged grounds of divorce as contained in the petition suit. I am satisfied that the First Respondent has during the subsistence of the said marriage been persistently cruel to the Petitioner on the basis of the evidence of the Petitioner and stated conduct of the First Respondent as outlined in paragraph 9 of the said Petition.
I am thus satisfied that the said marriage of the Petitioner to the First Respondent has irretrievably broken down on the singular ground of cruelty of the First Respondent to the Petitioner as particularly more pleaded in the said Petition. I am unable to make any finding on the said ground of adultery for want of adequate evidence.
I am satisfied that there has not been any connivance or condonation on the part of the Petitioner and further that no collusion exists between the Petitioner and the First nor the second Respondent. Lastly, I am satisfied that the Petition has not been presented or prosecuted in collusion with either the First or the Second Respondent and further that there has not been unreasonable delay in presenting or prosecuting the Petition.
I am satisfied on the basis of the evidence adduced that the case for the Petitioner has been proved beyond reasonable doubts. I hereby therefore pronounce a decree of divorce and order that the marriage between the Petitioner and the First respondent be and is hereby dissolved. A decree nisi shall henceforth issue, the same to be made absolute upon application. I grant custody of the eligible children of marriage to the Petitioner.
Consequently, the Petitioner is hereby granted liberty to apply for necessary orders of maintenance. The costs of the Petition shall be met by the First Respondent.
DATED and DELIVEREDat Nairobi this 12th day of February, 2004.
P. J. KAMAU
AG. JUDGE