[2015] KEHC 772 (KLR)

[2015] KEHC 772 (KLR)

The court found that both parties sought dissolution of the marriage and had not lived together for over ten years. The respondent deserted the matrimonial home, has since remarried, and had a child with another man, which constitutes both desertion and adultery. The marriage, solemnized under the old Marriage Act as monogamous, had irretrievably broken down. The petitioner proved his case on a balance of probabilities. The child of the marriage has been living with the petitioner, who has been the primary caregiver. Therefore, the court granted the dissolution of the marriage and awarded custody of the child to the petitioner.

Citation
[2015] KEHC 772 (KLR)
Parties
Petitioner: G G; Respondent: F E EB
Court
High Court
Court Station
High Court at Malindi
Jurisdiction
Kenya
Judgment Date
10 December 2015
Case Number
Divorce Cause 6 of 2005
Procedural Posture
Divorce Cause / Judgment
Outcome
Petition allowed. Marriage dissolved. Custody of the child granted to the petitioner. Each party to bear their own costs.
Judges
SJ Chitembwe
Legal Topics
Divorce, Child Custody, Adultery, Desertion
Source Language
English
Family and Children Divorce Child Custody Adultery Desertion

Case Brief

Summary, issues, holding and outcome

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Parties

G G

Petitioner

F E EB

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the marriage between the petitioner and respondent has irretrievably broken down.
  2. 2 Whether the petitioner is entitled to custody of the child of the marriage.
  3. 3 Whether the respondent committed adultery and deserted the matrimonial home.

Ratio Decidendi

The court found that both parties sought dissolution of the marriage and had not lived together for over ten years. The respondent deserted the matrimonial home, has since remarried, and had a child with another man, which constitutes both desertion and adultery. The marriage, solemnized under the old Marriage Act as monogamous, had irretrievably broken down. The petitioner proved his case on a balance of probabilities. The child of the marriage has been living with the petitioner, who has been the primary caregiver. Therefore, the court granted the dissolution of the marriage and awarded custody of the child to the petitioner.

Court Disposition

Petition allowed. Marriage dissolved. Custody of the child granted to the petitioner. Each party to bear their own costs.

Orders

  • The marriage between the petitioner and respondent is dissolved.
  • Custody of the child born out of the marriage is granted to the petitioner.