[2014] KEHC 3612 (KLR)
The court found that the petitioner had proved, on a balance of probabilities, that the respondent deserted the matrimonial home in January/February 2009 and had not returned for a period exceeding five years. This conduct satisfied the statutory ground of desertion under section 66 of the Marriage Act, 2014,...
Source-derived case information.
- Citation
- [2014] KEHC 3612 (KLR)
- Parties
- Petitioner: J M M; Respondent: D M M
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 1 of 2014
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition for divorce allowed
- Judges
- JV Juma
- Legal Topics
- Divorce, Irretrievable Breakdown of Marriage, Desertion, Marriage Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J M M
Petitioner
D M M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage under the Marriage Act, 2014.
- 2 Whether the respondent deserted the matrimonial home for the statutory period required for divorce.
Ratio Decidendi
The court found that the petitioner had proved, on a balance of probabilities, that the respondent deserted the matrimonial home in January/February 2009 and had not returned for a period exceeding five years. This conduct satisfied the statutory ground of desertion under section 66 of the Marriage Act, 2014, establishing that the marriage had irretrievably broken down. The absence of any response or challenge from the respondent left the petitioner’s evidence uncontroverted. The court was satisfied that the legal requirements for dissolution of the marriage had been met and therefore granted the petition for divorce.
Court Disposition
petition for divorce allowed
Orders
- Decree nisi to issue to be made absolute within three months of the judgment date.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 1 OF 2014
J M M.............................................PETITIONER
VERSUS
D M M...........................................RESPONDENT
JUDGMENT
The petitioner J M Mhas filed in court this petition dated 7th January, 2014 seeking the dissolution of his marriage to the respondent D M M. The respondent was duly served with the petition as well as a summons to enter appearance. She did not file any papers in reply. The matter therefore proceeded as an undefended cause.
The petitioner testified before court on 23rd June, 2014. He told the court that he and the respondent got married on 28th June, 2006 at the Registrar’s office in Mombasa. The annexed copy of their marriage certificate serial number [particulars withheld] is sufficient proof of the fact of the marriage. They bore one child called L M.
The petitioner told the court that he works for the Kenya Navy and as such was often away from the matrimonial home on duty. On one occasion in January/February, 2009 he returned home and caught the respondent in a bar with some men. When he questioned her she left the matrimonial home taking the child with her. To date the respondent has never returned and the couple have lived separately.
As stated earlier the respondent chose to file no reply to this petition. The evidence of the petitioner therefore remains unchallenged and uncontroverted. As a court I have no reason to doubt his veracity.
Section 66(2) of the Marriage Act, 2014 provides for the grounds upon which a civil marriage may be dissolved. One of such grounds is that of desertion by one spouse for at least three (3) years. The respondent left the matrimonial home in January/February, 2009. Upto January, 2014 when this petition was filed she had not returned – a period of five (5) years. In terms of section 66(b)(d) of the same Marriage Act it is clear that the marriage has irretrievably broken down. I am satisfied that this ground of desertion has been proved. I therefore 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 1st day of August, 2014.
M. ODERO
JUDGE
In the presence of:
No appearances