[2014] KEHC 692 (KLR)
The court found that the respondent was cruel to the petitioner by denying him conjugal rights and being dishonest during the marriage. The grounds of adultery and desertion were not available: adultery was not sufficiently proved as the alleged paramours were not named or joined as co-respondents, and the period of...
Source-derived case information.
- Citation
- [2014] KEHC 692 (KLR)
- Parties
- Petitioner: J O O; Respondent: R W M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 169 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Marriage dissolved; decree nisi issued.
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Cruelty, Adultery, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J O O
Petitioner
R W M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's conduct amounts to cruelty justifying dissolution of marriage.
- 2 Whether the grounds of adultery and desertion are established and available for granting divorce.
- 3 Whether there has been collusion or condonation by the petitioner.
Ratio Decidendi
The court found that the respondent was cruel to the petitioner by denying him conjugal rights and being dishonest during the marriage. The grounds of adultery and desertion were not available: adultery was not sufficiently proved as the alleged paramours were not named or joined as co-respondents, and the period of desertion had not reached the statutory minimum of three years. The court was satisfied that the marriage had irretrievably broken down, there was no collusion or condonation, and thus granted a decree nisi for dissolution of the marriage.
Court Disposition
Marriage dissolved; decree nisi issued.
Orders
- The marriage celebrated between the petitioner and respondent on 6th August 2010 is dissolved.
- Decree nisi to issue forthwith, to be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 169 OF 2013
BETWEEN
J O O.…………….…..PETITIONER
AND
R W M……………..RESPONDENT
JUDGEMENT
1. Marriage was celebrated between the parties herein on 6th August 2010 at the office of the Registrar of Marriages in Nairobi. A certificate of marriage serial number [particulars withheld] was issued to them in accordance with the Marriage Act. The couple thereafter cohabited at Dagoretti Corner, Wanyee Road in Nairobi, Kenya, as husband and wife. The couple was blessed with issue, J W O, born in 2010.
2. The petition in this matter was filed in court on 13th August 2013. The petitioner accuses the respondent of adultery, cruelty and desertion. On adultery, it is alleged that the respondent had sexual relations outside marriage with several unknown men. Not much weight should be given to this ground as the paramours have not been identified nor made co-respondents to the petition.
3. It is pleaded on desertion that the respondent left the matrimonial home on 21st March 2011 and has not returned to date. On cruelty, it is pleaded that the respondent has severally denied the petitioner his conjugal rights. It is further alleged that she confessed to the petitioner on 21st October 2012 that she had moved on with her life, had committed adultery with several men and that she did not plan on coming back to the petitioner.
4. The petition was served on the respondent and she did file appearance through counsel, but she did not file answer to the divorce petition nor cross-petition. On 13th March 2014 the Deputy Registrar certified that the matter proceeds for hearing as an undefended cause. As there is no reply, the petitioner’s allegations, as made in the petition, remain uncontroverted.
5. The petitioner testified on 16th October 2014 and gave vent to the allegations made in his petition. No counter evidence was given by the respondent, and therefore the petitioner’s story was not controverted. I am satisfied that the respondent has been cruel to the petitioner, by denying him his conjugal rights and by being dishonest to him in the course of the marriage. Three years have not lapsed since the alleged desertion and therefore divorce is not available under this ground. The adultery ground is not available too for the persons that the respondent allegedly committed adultery with have not been named nor joined to the proceedings as co-respondents.
6. It would appear to me that the marriage between the parties herein has irretrievably broken down. It would also appear to me that there has been no collusion between the petitioner and the respondent in the bringing of these proceedings. There is also no evidence that the petitioner has condoned the cruelty.
7. I hereby dissolve the marriage celebrated between the petitioner and respondent on 6th August 2010. Decreenisi shall issue forthwith, to be made absolute after thirty (30) days. There will be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 19th DAY OF December 2014.
W. MUSYOKA
JUDGE