[2014] KEHC 2692 (KLR)
The court found that the petitioner failed to provide concrete evidence of physical violence or imminent danger to justify restraining the respondent from the matrimonial home. The allegations of verbal abuse and humiliation, while serious, were not supported by sufficient proof. The claim of sexual abuse of the...
Source-derived case information.
- Citation
- [2014] KEHC 2692 (KLR)
- Parties
- Applicant: J H A; Respondent: B N K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 68 of 2013
- Procedural Posture
- Divorce Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Matrimonial Home Access, Domestic Violence Allegations, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J H A
Applicant
B N K
Respondent
Procedural Posture
Divorce Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the petitioner has established sufficient grounds for restraining the respondent from accessing the matrimonial residence pending determination of the divorce petition.
- 2 Whether the evidence supports allegations of cruelty and risk to the petitioner or child warranting exclusion of the respondent from the home.
Ratio Decidendi
The court found that the petitioner failed to provide concrete evidence of physical violence or imminent danger to justify restraining the respondent from the matrimonial home. The allegations of verbal abuse and humiliation, while serious, were not supported by sufficient proof. The claim of sexual abuse of the child was not substantiated by the documents on record, and no criminal prosecution had been initiated against the respondent. Given the drastic nature of the order sought and the lack of compelling evidence, the court concluded that the application was not merited and dismissed it.
Court Disposition
application dismissed
Orders
- The application dated 3rd April 2013 is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 68 OF 2013
J H A………………………….PETITIONER.
VERSUS
B N K………………………RESPONDENT
RULING
1. The Motion dated 3rd April 2013 seeks orders to restrain the respondent from harassing the petitioner and accessing her residence pending the hearing and determination of the divorce petition.
2. The petitioner accuses the respondent of cruelty. He is said to have on numerous occasions verbally abused and humiliated the petitioner, and to have even sexually abused their daughter. He is said to be based at Nakuru but visits Nairobi (where the petitioner lives) on weekends and public holidays. She avers that he will not be rendered homeless once the orders are made since he has a home at Nakuru. She further says that the lease over the [particulars withheld] Apartments is in her name.
3. She has attached documents to her affidavit to support her case. There is a marriage certificate as evidence that she and the respondent are married. There is a tenancy agreement dated 1st September 2012 bearing her signature and a medical report to support the claim that their daughter had been sexually assaulted.
4. The respondent replied to the application vide his affidavit sworn on 2nd October 2013. He denies the allegations made against him. He discloses that there is a children’s case between him and the petitioner, being Nairobi Children’s Case No. 440 of 2013. The buck of the affidavit dwells on matters touching on his role in the acquisition of matrimonial property and on his support for his children.
5. The petition has filed a further affidavit sworn on 17th October 2013. She reiterates the accusations she has made against the respondent in her earlier affidavit.
6. It was ordered on 3rd October 2013 that the application be disposed of by way of written submissions. Both parties filed their written submissions complete with authorities.
7. The principle ground on which the application is premised is violence. No allegations of physical violence are made in the affidavits, neither has any proof been provided of such violence. The petitioner merely complains of verbal abuse and humiliation. She also alleges sexual abuse of their daughter. I note that the documents on record on this do not at all point to the respondent. In any event no prosecution has been mounted for this obviously very serious offence.
8. Keeping a party out of their matrimonial home is a drastic measure. An order to that effect should be made only on concrete evidence. I do not have such evidence before me. There is nothing to indicate that the petitioner’s life is in danger.
9. In view of everything I have said above, I have come to the conclusion that the application dated 3rd April 2013 is not merited and I hereby dismiss it.
DATED, SIGNED and DELIVERED at NAIROBI this 3rd DAY OF October 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Njuguna advocate for the petitioner.