[2005] KEHC 1996 (KLR)
The court found that the petitioner had proved the grounds of desertion and cruelty as required under the Matrimonial Causes Act. The respondent did not contest the petition or present any evidence. The court was satisfied that the marriage had irretrievably broken down due to the respondent's desertion and cruelty....
Source-derived case information.
- Citation
- [2005] KEHC 1996 (KLR)
- Parties
- Applicant: Heribert Franz Maier; Respondent: Eunice Wambui Kibuna
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 45 of 2005
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of minor child to respondent. Maintenance ordered. No order as to costs.
- Legal Topics
- Divorce, Child Custody, Child Maintenance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Heribert Franz Maier
Applicant
Eunice Wambui Kibuna
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent is guilty of desertion for at least three years preceding the petition.
- 2 Whether the respondent has treated the petitioner with cruelty by denying conjugal rights and affection.
- 3 Who should have custody, care, and control of the minor child of the marriage.
Ratio Decidendi
The court found that the petitioner had proved the grounds of desertion and cruelty as required under the Matrimonial Causes Act. The respondent did not contest the petition or present any evidence. The court was satisfied that the marriage had irretrievably broken down due to the respondent's desertion and cruelty. Accordingly, the court ordered the dissolution of the marriage. Regarding the minor child, the court determined that custody, care, and control should be granted to the mother, with the petitioner having access whenever possible and an obligation to pay monthly maintenance. The court made no order as to costs, reflecting the circumstances and lack of contestation.
Court Disposition
Petition allowed. Marriage dissolved. Custody of minor child to respondent. Maintenance ordered. No order as to costs.
Orders
- Marriage between petitioner and respondent is dissolved.
- Decree Nisi to be made absolute within 2 months from the date of judgment.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASADivorce Cause 45 of 2005HERIBERT FRANZ MAIER …………………….…….. PETITIONER
VERSUS
EUNICE WAMBUI KIBUNA ………………………… RESPONDENT
J U D G M E N T
The Petition of H M shows that on 4/11/1998 he celebrated a marriage with E W K (respondent). After the marriage the parties cohabited in Mtwapa. A child was born to them namely MM. Both parties are not engaged in any income earning enterprise. Since the celebration of marriage the respondent is guilty of desertion for a period of at least of 3 years immediately preceding this petition.
Also the petitioner states that the respondent has treated him with cruelty in that she has refused to grant the petitioner his conjugal rights and love and affection. The petitioner gave evidence in support of his petition and said he does not know where the child of the marriage resides except that the child resides with the mother in Europe. Upon considering the evidence and the petition of the petitioner l find that the petitioner has proved his petition.
I enter judgment for petitioner and order the dissolution of his marriage with respondent E W K. I declare Decree Nisi to be made absolute within 2 months from the date hereof.
Regarding the minor child of the marriage l grant care custody and control to the mother but the petitioner shall have access whenever possible and he shall pay maintenance for the child into the sum of ksh. 1000/- per month. There will be no Order as to costs.
Dated this 13th day of July 2005.
J. KHAMINWA
JUDGE
Judgment read before Mr. Gisemba on 13/7/05.
J. KHAMINWA
JUDGE