[2019] KEHC 3382 (KLR)
The court found that both parties had proved acts of cruelty and desertion against each other on a balance of probabilities. The evidence demonstrated that the parties had lived apart for over ten years and that there were irreconcilable differences. Both parties sought dissolution, and there was no evidence of...
Source-derived case information.
- Citation
- [2019] KEHC 3382 (KLR)
- Parties
- Petitioner: IWG; Respondent: GMG
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 99 of 2005
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; cross-petition allowed; marriage dissolved
- Legal Topics
- Divorce, Cruelty, Desertion, Irretrievable Breakdown, Matrimonial Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
IWG
Petitioner
GMG
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and Respondent has irretrievably broken down.
- 2 Whether acts of cruelty and desertion have been proved by either party.
- 3 Whether the parties are entitled to dissolution of marriage.
Ratio Decidendi
The court found that both parties had proved acts of cruelty and desertion against each other on a balance of probabilities. The evidence demonstrated that the parties had lived apart for over ten years and that there were irreconcilable differences. Both parties sought dissolution, and there was no evidence of collusion, connivance, or condonation. The court concluded that the marriage had irretrievably broken down and existed only on paper, warranting its dissolution under the applicable law.
Court Disposition
petition allowed; cross-petition allowed; marriage dissolved
Orders
- The marriage celebrated between the Petitioner and the Respondent on 2nd February, 1991 at P.C.E.A Church Nairobi is hereby dissolved.
- A Decree Nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this Judgment.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 99 OF 2005
IWG............................................PETITIONER
VERSUS
GMG........................................RESPONDENT
JUDGMENT
1. The Petitioner and the Respondent then a spinster and a bachelor respectively solemnized their marriage on 2nd February, 1991 at P.C.E.A Church Nairobi under the Christian Marriage and Divorce Act (Cap 151) of the Laws of Kenya. A Certificate of marriage serial number [xxxx] was issued to them. The couple cohabited at [Particulars withheld] off Kiambu road. The union was blessed with three issues namely; MSM, HW and IN.
2. The Amended Petition filed on 15th April, 2009 is premised on the ground of cruelty against the Petitioner by the Respondent as particularised thereto. The Petitioner states that since the celebration of their marriage, the Respondent has been guilty of desertion and acts of cruelty against her.
3. The Petitioner complained that the Respondent has subjected her to physical cruelty, assault causing bodily harm, embarrassment and continuous psychological stress and trauma. She accused the Respondent of chasing her out of their matrimonial home where he started cohabiting with other women. She also accused him of being a drunkard and of defamation of character. She stated that the Respondent exposed the Petitioner to mental anguish due to his conduct.
4. The Petitioner urged that due to the aforesaid acts of desertion and cruelty the Petitioner strongly feels that they cannot continue to hold out as husband and wife with the Respondent. She therefore asked the court to dissolve the marriage between her and the Respondent as the marriage had irretrievably broken down. She confirmed that this Amended Petition had not been presented or prosecuted in collusion with the Respondent, nor had she connived or condoned the acts of cruelty and infidelity complained of.
5. Upon being served with the Amended Petition, the Respondent filed his Answer to Amended Petition and a Cross-petition. He denied all grounds advanced by the Petitioner. He accused the Petitioner of deserting the matrimonial home and of cruelty against him leading to the irretrievable breakdown of the marriage. In the Cross-petition, he too prayed that the marriage between the Petitioner and himself be dissolved.
6. On 16th April, 2012 the Deputy Registrar certified that the matter was suitable to proceed for hearing as a defended cause for one day in Nairobi before a single Judge. On 26th September, 2019 the matter came for hearing but there was no appearance from the Respondent despite service being effected.
7. In his testimony, the Petitioner stated that the couple had been living separately since January 2009 and that there was no possibility of reconciliation. She urged the court to dissolve the marriage between herself and the Respondent as the marriage had irretrievably broken down.
8. I have perused the grounds of the Amended Petition, the Answer thereto and the grounds of the Cross-Petition. I have also considered the oral evidence of the Petitioner as tendered in Court. What is not in dispute is that the parties have lived apart for the last ten (10) years. It is also clear that there have been irreconcilable differences between them and both parties want the marriage celebrated between them to be dissolved.
9. They confirm that this Amended Petition has not been presented or prosecuted in collusion, neither have they connived or condoned the matrimonial offences which each has complained of. They both certify that there have been no previous proceeding filed regarding the marriage.
10. From the foregoing, I make the finding that due to the matrimonial offences set out above and which have been proved on either side on a balance of probabilities the marriage between the two parties remains in existence in paper only. The marriage celebrated between the parties herein on 2nd February, 1991 has broken down irretrievably and cannot be salvaged.
In the premise, I make the following orders:
i. That the marriage celebrated between the Petitioner and the Respondent on 2nd February, 1991 at P.C.E.A Church Nairobi is hereby dissolved.
ii. That a Decree Nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this Judgment.
iii. There shall be no orders as to costs.
SIGNED DATED AND DELIVERED IN OPEN COURT THIS 17TH DAY OF OCTOBER, 2019.
…………………….
L. A. ACHODE
HIGH COURT JUDGE
In the presence of …………………………………………Advocate for the Petitioner
In the presence of ……………………………………. Advocate for the Respondent