[2006] KEHC 3362 (KLR)
The court found that the respondent had deserted the petitioner without cause for a period exceeding three years prior to the filing of the petition. The evidence presented by the petitioner was unchallenged, as the respondent neither filed an answer nor appeared in court. The court accepted the petitioner's account...
Source-derived case information.
- Citation
- [2006] KEHC 3362 (KLR)
- Parties
- Petitioner: H.F.Z; Respondent: S.N.Z
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 70 of 2005
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Decree of divorce granted; marriage dissolved.
- Legal Topics
- Divorce, Matrimonial Offences, Desertion, Custody of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H.F.Z
Petitioner
S.N.Z
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent deserted the petitioner without cause for at least three years preceding the petition.
- 2 Whether the petitioner is entitled to a decree of divorce on grounds of desertion.
Ratio Decidendi
The court found that the respondent had deserted the petitioner without cause for a period exceeding three years prior to the filing of the petition. The evidence presented by the petitioner was unchallenged, as the respondent neither filed an answer nor appeared in court. The court accepted the petitioner's account as accurate and determined that the statutory requirements for desertion as a ground for divorce under section 8(1)(b) of the Matrimonial Causes Act had been satisfied. Consequently, the court held that the marriage had irretrievably broken down due to the respondent's desertion and granted a decree of divorce, to be made absolute after the statutory period.
Court Disposition
Decree of divorce granted; marriage dissolved.
Orders
- A decree nisi of divorce is issued dissolving the marriage between the petitioner and respondent.
- The decree nisi shall be made absolute after expiry of the statutory period of three months upon application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 70 of 2005
H.F.Z………….......……………..PETITIONER
VERSUS
S.N.Z…………………………. RESPONDENT
JUDGMENT
On 30. 05. 05 the petitioner filed petition whose central theme or prayer is that:-
The marriage between the petitioner and respondent be dissolved and a divorce granted.
The petitioner was represented in these divorce proceedings by learned counsel, Mr T.O. Nyakeno. Hearing took place before me on 09. 11. 06 whereat Mr Nyakeno appeared for the petitioner but there was no appearance for the respondent.
The following emerges from the pleadings and evidence in support thereof.
The petitioner and respondent got married to each other on 25. 09. 92 at the Office of the Registrar of Marriages, Sheria House, Nairobi under the Marriage Act, Cap.150 Laws of Kenya
reafter they established a home at [particulars withheld] in Nairobi. There is one issue of the marriage, a boy named A. M. Z. born on 04. 05. 90 and now aged around 16 years.
It is the petitioner’s case that the respondent left and/or deserted him (petitioner) and the matrimonial home on 15. 09. 96 merely saying she had decided to leave him and has never resumed cohabitation with the petitioner eversince and lives in [particulars withheld] separately from the petitioner. The petitioner adds that from the date of desertion aforesaid, the respondent has failed to provide the petitioner with necessary love, support and conjugal rights, hence the prayer for dissolution of the marriage.
It is the petitioner’s further evidence that since the respondent deserted the matrimonial home, he (petitioner) and respondent have had joint custody of the child of the marriage but that the petitioner has been meeting the child’s school fees and maintenance expenses.
The petitioner is a German and a tour operator by profession. He lives in Nairobi. The respondent is a Kenyan and businesswoman.
The court record shows that one Francis Gachigi Nyingi, process server duly served upon the respondent on 17. 06. 05 a notice to appear plus the petition herein and that the respondent acknowledged service. There is no evidence that the respondent entered appearance or answer to petition. This matter, therefore, proceeded as an undefended cause. According to the petitioner, the marriage between him and respondent has irrefutably broken down.
I have given due consideration to the pleadings herein and the evidence in support thereof.
As the respondent neither filed answer to the petition nor appeared to give evidence, the petitioner’s evidence remains unchallenged and I accept it as reflecting the correct state of affairs with regard to the failed marriage between the petitioner and respondent. Section 8 of the Matrimonial Causes Act, Cap.152 Laws of Kenya provides, inter alia, as follows:
‘8. (1) A petition for divorce may be presented to the court either by the husband or the wife on the ground that the respondent –
(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition’.
The ingredients of desertion have been fully met in this case and I find the respondent guilty of the matrimonial offence of desertion. Accordingly, I pronounce a decree of divorce and order that the marriage between the petitioner and respondent be and is hereby dissolved. Decree nisishall issue forthwith, the same to be made absolute after expiry of the statutory period of 3 (three) months, upon application therefor.
Orders accordingly.
Delivered at Nairobi this 30th Day of November, 2006.
B.P. KUBO
JUDGE