[2010] KEHC 3301 (KLR)

[2010] KEHC 3301 (KLR)

The court found that the petitioner failed to prove desertion as the period between the respondent's departure and the filing of the petition was less than the statutory minimum of three years required under Section 8 of the Matrimonial Causes Act. However, the court held that the petitioner had proved cruelty, as the respondent's conduct of denying conjugal rights and abandoning the petitioner and children for a significant period amounted to cruelty. The court also found that the marriage had broken down irretrievably and that the best interests of the children required that custody remain with the petitioner, as the respondent had shown no interest in their welfare.

Citation
[2010] KEHC 3301 (KLR)
Parties
Petitioner: G.K.T; Respondent: F.A.M
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
11 March 2010
Case Number
Divorce Cause 20 of 2009
Procedural Posture
Divorce Cause / Judgment
Outcome
petition allowed in part
Legal Topics
Dissolution of Marriage, Cruelty, Custody of Children
Source Language
English
Family and Children Dissolution of Marriage Cruelty Custody of Children

Case Brief

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Parties

G.K.T

Petitioner

F.A.M

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the petitioner has proved cruelty as a ground for dissolution of marriage.
  2. 2 Whether the petitioner has proved desertion as a ground for dissolution of marriage.
  3. 3 Who should be granted custody of the children of the marriage.

Ratio Decidendi

The court found that the petitioner failed to prove desertion as the period between the respondent's departure and the filing of the petition was less than the statutory minimum of three years required under Section 8 of the Matrimonial Causes Act. However, the court held that the petitioner had proved cruelty, as the respondent's conduct of denying conjugal rights and abandoning the petitioner and children for a significant period amounted to cruelty. The court also found that the marriage had broken down irretrievably and that the best interests of the children required that custody remain with the petitioner, as the respondent had shown no interest in their welfare.

Court Disposition

petition allowed in part

Orders

  • The marriage between the petitioner and the respondent is dissolved; decree nisi to be made absolute after 6 months.
  • The petitioner is granted care, control, and custody of the two children, with the respondent having a right of access.