[2006] KEHC 2064 (KLR)
The court found, on a balance of probabilities, that the Respondent had treated the Petitioner with cruelty as particularized in the petition, including repeated desertion, lack of care for the children, and failure to defend or contest the proceedings. The Respondent's absence and lack of interest in the marriage...
Source-derived case information.
- Citation
- [2006] KEHC 2064 (KLR)
- Parties
- Petitioner: F.G.K; Respondent: J.J.C
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 12 of 2005
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of children granted to Petitioner. No order as to costs.
- Judges
- AI Tullu
- Legal Topics
- Divorce, Custody of Children, Matrimonial Cruelty
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
F.G.K
Petitioner
J.J.C
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent treated the Petitioner with cruelty sufficient to warrant dissolution of the marriage.
- 2 Whether the Petitioner is entitled to custody of the children of the marriage.
Ratio Decidendi
The court found, on a balance of probabilities, that the Respondent had treated the Petitioner with cruelty as particularized in the petition, including repeated desertion, lack of care for the children, and failure to defend or contest the proceedings. The Respondent's absence and lack of interest in the marriage or the children further supported the conclusion that the marriage had irretrievably broken down. The court determined that it was in the best interests and welfare of the children for custody to be granted to the Petitioner, their father, given the Respondent's demonstrated lack of involvement and concern.
Court Disposition
Petition allowed. Marriage dissolved. Custody of children granted to Petitioner. No order as to costs.
Orders
- The marriage between the Petitioner and the Respondent is dissolved.
- The Petitioner shall have custody of the three children of the marriage.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Divorce Cause 12 of 2005
F.G.K.......................................................................................................PETITIONER
VERSUS
J.J.C..........................................................................................................RESPONDENT
JUDGEMENT
The Petitioner lodged this Petition in court on 24th October, 2005 seeking the following orders:-
(i) Dissolution of the marriage to the Respondent and grant of an Order of divorce.
(ii) Custody of the children of the marriage
(iii) Costs of the petition.
The Respondent was duly served with the petition on 25th October,2005. The Petitioner subsequently caused the service of the Hearing Notice together with copies of the statement, Notice to Appear and petition on the Respondent on 16th December,2005. The hearing was scheduled for 23rd January,2006. The Respondent acknowledged receipt of the process by signing on the back of the original copy. I am satisfied that she was duly served.
The Respondent did not file any response to the petition neither did she cross – petition. The petition was heard on 23rd January, 2006 and 15th May, 2006.
The Petition is grounded on alleged cruelty on the part of the Respondent. Upon hearing the petition, the court finds that the Petitioner and the Respondent were married at St. Mathew’s Pro – Cathedral at Eldoret on 14th December, 1990. The couple lived in Kapsoya Estate in Eldoret from the date of marriage up to 2000.
The union was blessed with three (3) children:-
1. A.W – Daughter, born on 14th August, 1990.
2. M.W, - Daughter, born on 29th April,1993.
3. J. K - Son, born on 19th January,1998.
In the year 2000, the Petitioner and the Respondent moved to live in Lumumba Avenue, Eldoret. The Respondent left the matrimonial home in July 2004 for 6 months. She moved out of the house again from 11th August, 2005 and has not gone back to the matrimonial home ever since.
The Petitioner testified that the Respondent has never gone to see the children. Two of the children fell sick and were hospitalized this year but she did not go to see them. The Petitioner told the court that even before the desertion from the matrimonial time, the Respondent was quarrelsome and did not look after the children. She used to go back home at night, at about 9. 00 p.m. on many occasions, she would disappear for 3 – 4 months without any communication with the Petitioner. The Petitioner produced a note from the Respondent in which she declared that she would never go back to live with him. She made various allegations against the Petitioner in the said note.
Upon consideration of the petition and the evidence of the Petitioner, I do hereby find, on a balance of probability, that the Respondent has treated the Petitioner with cruelty as particularized in the Petition. The Respondent has not come to defend these proceedings or to cross-petition. This omission demonstrates that she has no interest whatsoever in this marriage. Sadly, this also demonstrates that she does not care for her children enough to ask for their custody.
I am of the view that in the circumstances of this case at this stage that it is in the interest and welfare of the children of the marriage for them to be in the custody of their father.
I do hereby order the dissolution of the marriage between the Petioner and the Respondent. The Petitioner shall have the custody of the three children of the marriage. The Respondent is at liberty to apply for access and visitation if she has a change of heart about the children. There shall be no order as to costs.
DATED AND DELIVERED AT ELDORET ON THIS 15TH DAY OF JUNE, 2006
M. K. IBRAHIM
JUDGE
15/6/06
Coram – Ibrahim ‘J’
C/C - Chelanga.
Mr. Fredrick Gitau Kamau in person – Petitioner
No Appearance by/for the Respondent
Judgement delivered and signed.