[2003] KEHC 250 (KLR)
The court found that the petitioner failed to provide sufficient evidence to prove the grounds of desertion and cruelty as required by law. Mere physical separation due to work or studies in different countries does not amount to desertion or cruelty. The court was not satisfied that the marriage had irretrievably...
Source-derived case information.
- Citation
- [2003] KEHC 250 (KLR)
- Parties
- Applicant: J K L; Respondent: N B L
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 55 of 2001
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce dismissed; child maintenance granted; no order as to costs.
- Legal Topics
- Divorce Petition, Desertion, Cruelty, Child Maintenance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J K L
Applicant
N B L
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner proved grounds of desertion and cruelty to warrant dissolution of marriage.
- 2 Whether the marriage has irretrievably broken down.
- 3 Whether the respondent should be ordered to pay maintenance for the child of the marriage.
Ratio Decidendi
The court found that the petitioner failed to provide sufficient evidence to prove the grounds of desertion and cruelty as required by law. Mere physical separation due to work or studies in different countries does not amount to desertion or cruelty. The court was not satisfied that the marriage had irretrievably broken down. However, based on the respondent's expressed willingness to contribute to the child's maintenance, the court granted an order for monthly maintenance for the child. The court declined to award costs, considering the circumstances and the petitioner's financial position.
Court Disposition
Petition for divorce dismissed; child maintenance granted; no order as to costs.
Orders
- Prayers (a) and (d) in the petition are dismissed.
- Prayer (b) is granted.
Full Case Text
Judgment text and source record
18 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI DIVORCE CAUSE NO. 55 “B” OF 2001
J K L……………………. PETITIONER
VERSUS
N B L ………………… RESPONDENT
JUDGMENT
The Petitioner in this divorce cause, J K L, got married to the Respondent, N B L, under the Marriage Act {Cap. 150 Laws of Kenya} at the District Commissioner’s Office, Kericho, on 20th February 1989.
Thereafter they cohabited as husband and wife at Kericho and several other places in Kenya working as Civil Servants before the Petitioner went to Australia for further studies at the end of 1995. While in Australia the Respondent, as a dependant of the Petitioner, joined the Petitioner in Australia to take some courses.
The Petitioner having completed her studies in 1997 came back to Kenya leaving the Respondent still going on with his courses in Australia. The Petitioner got re-employed in Kenya and she is now in the managerial category in the private sector.
From here onwards, in the proceedings, the Petitioner did not give me the impression that she was open in her story. But from what she said, I gather that while the Respondent was still in Australia, it came to his knowledge that there were opportunities for him doing business or being employed in Botswana. The Respondent therefore went to Botswana from Australia without coming to Kenya. It is apparent they were and have been communicating. But the Petitioner is unwilling to say much except production of Exhibit 7, a letter from the Respondent to the petitioner dated 9th November 2002.
That, in summary, is the evidence before me in this matter where the petitioner has petitioned for divorce on the grounds of desertion and cruelty. When I read the petition, I do not find the evidence before me supporting the allegations of desertion and cruelty in the petition. I do not see how desertion and or cruelty come just because married people stay a part or work in different countries. I do not see how cruelty comes just because a wife is assisting her husband as a dependant to get some studies. Look at prayer (d). If so, what desertion is there?
It is unfortunate the Respondent did not come to defend this cause. But I think I do not have sufficient evidence from which I can properly hold that this marriage is completely broken down to the extent of there being no possibility of it being salvaged.
That being the position, I do hereby dismiss prayers (a) and (d) in the petition.
I grant prayer (b).
I would have refused to grant prayer © since the petitioner is a well educated lady occupying a managerial position in the private sector where salaries are good and it is not mandatory that she sends their only child to a high cost primary school. But since it is indicated in exhibit 7 that the Respondent is anxious to make some payment, I do hereby grant prayers © and order that the Respondent do make a monthly payment of Ksh 15,000/= to the issue of the marriage I O L. There will be no order for costs of this petition.
Dated at Nairobi this 17th Day of January 2003.
J.M. KHAMONI
JUDGE