[2014] KEHC 3718 (KLR)
The court found that the petitioner had proved, on a balance of probabilities, that the respondent committed adultery by fathering a child with another woman during the marriage. The respondent's physical violence and cancellation of the petitioner's residency status in Dubai constituted cruelty. The respondent's...
Source-derived case information.
- Citation
- [2014] KEHC 3718 (KLR)
- Parties
- Applicant: J K D; Respondent: M D
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 73 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed. Decree nisi to issue, to be made absolute within three months. No order as to costs.
- Judges
- JV Juma
- Legal Topics
- Divorce, Adultery, Cruelty, Marriage Dissolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J K D
Applicant
M D
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent committed adultery during the subsistence of the marriage.
- 2 Whether the respondent's actions amounted to cruelty towards the petitioner.
- 3 Whether the petitioner is entitled to a decree of divorce based on the grounds pleaded.
Ratio Decidendi
The court found that the petitioner had proved, on a balance of probabilities, that the respondent committed adultery by fathering a child with another woman during the marriage. The respondent's physical violence and cancellation of the petitioner's residency status in Dubai constituted cruelty. The respondent's failure to appear or contest the petition left the petitioner's evidence unchallenged and credible. The court accepted the psychiatric evidence of emotional distress and concluded that the grounds for divorce—adultery and cruelty—had been established. Accordingly, the court granted the petition for dissolution of marriage and ordered that a decree nisi issue, to be made absolute...
Court Disposition
Petition for divorce allowed. Decree nisi to issue, to be made absolute within three months. No order as to costs.
Orders
- Petition for divorce is allowed.
- Decree nisi to issue, to be made absolute within three months from the date of judgment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 73 OF 2013
J K D…..……….…..….………...…PETITIONER
VERSUS
M D……………….………………RESPONDENT
JUDGMENT
The petitioner J K D has filed this petition seeking the dissolution of her marriage to the respondent M D. The respondent who was duly served with both the petition as well as a summons to enter appearance failed to enter appearance and also failed to file any Answer to the Petition. The matter therefore proceeded as an undefended cause.
In her evidence the petitioner told the court that she and the respondent got married to each other on 24th March, 2011 at the Bahari Beach Hotel in Mombasa. The annexed marriage certificate serial number 171907 is proof of the marriage. Following the wedding the couple moved to live in Dubai where the respondent worked as a Medical Technologist. No children were born of the union.
The petitioner accuses the respondent of adultery. She states that she became aware that the respondent fathered a child with an Ethiopian lady. When the petitioner asked him about it the respondent beat her up and she became unconscious. The petitioner also claims that the respondent cancelled her resident’s status in Dubai so she could no longer work there. She had no option but to return to Kenya. Despite the fact that the respondent travels to Mombasa for work he makes no effort to see or communicate with the petitioner. Thus the petitioner seeks this divorce.
As stated earlier the respondent though duly served made no reply to the petition. As it is the averments in the petition and the evidence of the petitioner remain unchallenged. As court I have no reason to doubt the veracity of the petitioner. The fact of impregnating another woman is clear evidence of adultery. The petitioner claimed that the respondent’s actions caused her severe emotional distress leading to depression. A letter dated 18th September, 2013 from Dr. C. M. Mwang’ombe, a consultant psychiatrist who was treating the petitioner confirms this. The respondent’s actions do clearly amount to cruelty. I therefore find that the grounds of adultery have been proved. I allow this petition for divorce. Decree nisi to issue to be made absolute
within three (3) months of today’s date. No order on costs.
Dated and delivered in Mombasa this 23rd day of July, 2014.
M. ODERO
JUDGE
In the presence of:
Ms. Kisoe for Petitioner
Court Clerk Mutisya