[2014] KEHC 1290 (KLR)
The court found that the Petitioner had established, through affidavit and oral evidence, that the Respondent was guilty of cruelty and desertion, and that the marriage had broken down irretrievably. The Respondent, despite being given several opportunities, failed to attend court to defend the marriage or rebut the...
Source-derived case information.
- Citation
- [2014] KEHC 1290 (KLR)
- Parties
- Petitioner: J M K; Respondent: M N M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 10 of 2008
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- LA Achode
- Legal Topics
- Divorce, Cruelty, Desertion, Irretrievable Breakdown, Custody, Matrimonial Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J M K
Petitioner
M N M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent was guilty of cruelty towards the Petitioner.
- 2 Whether the Respondent deserted the matrimonial home since 2006.
- 3 Whether the marriage has broken down irretrievably and should be dissolved.
Ratio Decidendi
The court found that the Petitioner had established, through affidavit and oral evidence, that the Respondent was guilty of cruelty and desertion, and that the marriage had broken down irretrievably. The Respondent, despite being given several opportunities, failed to attend court to defend the marriage or rebut the Petitioner's claims. The court was satisfied that reconciliation attempts had failed and that the marriage could not be salvaged. Accordingly, the court held that the grounds for dissolution had been met under the Marriage Act and ordered the marriage dissolved.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage celebrated between the Petitioner and the Respondent at the Registrar’s office in Nairobi on 7th February 1997 is hereby dissolved.
- 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
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 10 OF 2008
BETWEEN
J M K………………………………………………..PETITIONER
AND
M N M …….…………………….……………………RESPONDENT
JUDGEMENT
1. On 7th February 1997 the Petitioner, then a bachelor known as J M K was lawfully married to the Respondent M N M then a spinster, and a certificate Serial No. [particulars withheld] issued to them in accordance with the Marriage Act Cap 150 Laws of Kenya. The marriage was celebrated at the office of the Registrar of Marriages in Nairobi and thereafter they cohabited as husband and wife in Nairobi. They were blessed with one issue of the marriage namely M M M aged 8 years 3 months at the time of filing the Petition.
Both the Petitioner and Respondent are domiciled in Kenya where they are self-employed designers.
2. The Petition filed on 7th February 2008 is premised on grounds of cruelty and desertion since the year 2006 to date. The Petitioner avers that the Respondent was guilty of wilful and unjustifiable acts which inflicted pain, anguish and misery upon him. The acts which were said to be of a psychological nature, were such as on several occasions the Respondent refusing to speak to the Petitioner and refusing to allow their son to speak to him. They also included the Respondent’s attempts to have her sister adopt the child of the marriage and also provoking the Petitioner so as to bring about circumstances which would cause him to leave America without his son. He further avers that the Respondent frustrated his attempts to run a business in America despite having closed his business in Kenya to be with her.
3. The Respondent was served with the Petition and in the answer to Cross-Petition dated 28th February 2008, the Respondent denies the allegations made in the Petition, and avers that she did not desert the matrimonial home. It is her assertion that they both agreed to have a fresh start to their marriage in Atlanta Georgia, in the United States of America and denies the allegation of cruelty to the Petitioner. The Respondent has dismissed the Petitioner’s Petition and the grounds thereof and stated that the marriage ought to be saved as it has not broken down irretrievably.
4. On 15th May 2008 the Deputy Registrar of the Division certified the matter as suitable to proceed as a defended cause for one day at Nairobi. On 2nd February 2012 the matter came up for hearing before Hon. Njagi J. The Petitioner testified and basically reiterated what he had set out in his Petition. The Respondent did not attend court to testify despite several adjournments being granted to give her a chance to avail herself. On 5th December 2013 the matter came up before Musyoka J who directed that it should proceed from where Njagi J had left it. On 16th October 2014 the trial was finally closed without the Respondent’s testimony. The Petitioner’s written submissions were served upon the Respondent’s Advocate on record without eliciting any response.
5. The Petitioner therefore prays that the marriage be dissolved. He confirms that this Petition has not been presented or prosecuted in collusion with the Respondent, neither has he connived or condoned the acts of cruelty and the desertion complained of. He also certifies that there have been no previous proceedings filed regarding the marriage.
6. According to the Petitioner, several attempts have been made at reconciliation but these appear to have come to nought. The Respondent did not avail herself in court after several adjournments, to defend the marriage that she believes is still capable of being salvaged. Despite the protestations of the Respondent it is apparent from the affidavit and oral evidence that the marriage celebrated between the parties herein on 7th February 1997, has broken down irretrievably and cannot be salvaged.
7. In the circumstances I make orders as follows:
That the marriage celebrated between the Petitioner and the Respondent at the Registrar’s office in Nairobi on 7th February 1997, is hereby dissolved.
That Decree Nisi dissolving the said marriage is hereby issued, to be made absolute thirty (30) days from the date of this judgment.
That matters concerning the custody of the child of the marriage shall be determined by the Chidren’s Court.
There shall be no orders as to costs.
SIGNED DATEDandDELIVEREDin open court this 27th day of November 2014.
…………………………………….
L. A. ACHODE
JUDGE