[2016] KEHC 276 (KLR)
The court found that the respondent deserted the petitioner by moving to the United States in 2001 and failing to resume cohabitation or make any effort to maintain the marriage. The evidence of desertion was uncontroverted as the respondent did not participate in the proceedings. The court held that the marriage...
Source-derived case information.
- Citation
- [2016] KEHC 276 (KLR)
- Parties
- Petitioner: I W N; Respondent: P M N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 121 of 2015
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- REA Ougo
- Legal Topics
- Divorce, Desertion, Irretrievable Breakdown of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
I W N
Petitioner
P M N
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent deserted the petitioner, thereby justifying dissolution of the marriage.
- 2 Whether the marriage has irretrievably broken down under the applicable law.
Ratio Decidendi
The court found that the respondent deserted the petitioner by moving to the United States in 2001 and failing to resume cohabitation or make any effort to maintain the marriage. The evidence of desertion was uncontroverted as the respondent did not participate in the proceedings. The court held that the marriage had irretrievably broken down due to prolonged separation and lack of companionship, and that denying the petitioner a divorce would unjustly shackle her to a partner who abandoned her over 15 years ago. Accordingly, the court granted the dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and respondent celebrated on 25th November 1998 is dissolved.
- A decree nisi to issue and to be made absolute within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO.121 OF 2015
I W N….……………..…………...……PETITIONER
VERSUS
P M N….….....……….……………. RESPONDENT
JUDGMENT
1. The petitioner I W N via her13th August 2015 avers that she got married the respondent on 25th November 1998 at the Registrar’s office, Nairobi under the Marriage Act, Cap 150 Laws of Kenya. After the said cerebration of marriage the couple lived within Nairobi until January 2001 when the respondent moved to the United States of America. The couple do not have any issue to the marriage. That since moving to the United States of America the respondent has refused to resume cohabitation with the petitioner and has unliterary deserted the matrimonial home. That the marriage has irretrievably broken down. The petitioner prays for dissolution of the marriage to the respondent and cost of the cause.
2. The respondent was served via registered post to his last known address. The respondent did not enter appearance or file an answer to the petition. The Registrar on 1st September 2016 issued a certificate for the matter to proceed as undefended.
3. When the matter came for hearing the petitioner testified that since the respondent travelled to the United States of America that she is informed that he comes to Kenya they never see each other or stay together.
4. Desertion is one of the grounds provided for under the Matrimonial Causes Act Cap 152 (now repealed) and also the Marriage Act 2014. For the court to grant the orders sought it must be satisfied that the petitioner has established a case on Desertion. The petitioner’s evidence was not controverted. The petitioner has sought divorce on grounds of desertion. The respondent is said to have travelled to the United States way back in 2001 and has never resumed cohabitation with the petitioner. A perusal of the marriage certificate indicates that the petitioner was 19 years when she contracted the marriage with the respondent. The main aim of marriage is companionship the respondent upon leaving the country did not appear to make any efforts to resume cohabitation with the petitioner. Currently the petitioner is 37 years old. I believe denying the petitioner a divorce is forcing her to stay shackled to the respondent who abandoned her close over 15 years ago. I find that the respondent is guilty of desertion and allow the petitioner’s petition.
5. Due to the said desertion the marriage has irretrievably broken down and the only course of action that is just is to dissolve the marriage. The parties have lived apart since 2006. I find that the marriage between the parties has irrevocably broken down and the respondent deserted the petitioner. I therefore dissolve the marriage between the petitioner and the respondent that was celebrated at the Registrar’s of Marriages at Nairobi on 25th November 1998. A decree nisi to issue and to be made absolute within 30 days. No orders as to costs. It is so ordered
Dated signed and delivered this15thDay of December 2016.
R. E. OUGO
JUDGE
In the presence of:
…………………………………………………………………..For the Petitioner
…………………………………………………………………For the Respondent
Ms. Charity Court Clerk