[2010] KEHC 1692 (KLR)
The court found that the respondent had deserted the petitioner since 2002, a period of nearly seven years by the time the petition was lodged. The evidence of desertion was uncontroverted, as the respondent neither filed an answer nor appeared in court. The court was satisfied that the petitioner had established...
Source-derived case information.
- Citation
- [2010] KEHC 1692 (KLR)
- Parties
- Petitioner: J.O; Respondent: T.M
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 59 of 2009
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Legal Topics
- Divorce, Desertion, Cruelty, Child Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.O
Petitioner
T.M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's conduct amounted to cruelty towards the petitioner.
- 2 Whether the respondent deserted the matrimonial home and the petitioner for a continuous period sufficient to warrant dissolution of marriage.
- 3 Whether the marriage has irretrievably broken down.
Ratio Decidendi
The court found that the respondent had deserted the petitioner since 2002, a period of nearly seven years by the time the petition was lodged. The evidence of desertion was uncontroverted, as the respondent neither filed an answer nor appeared in court. The court was satisfied that the petitioner had established the ground of desertion as required by law. Given the length of desertion and the absence of any indication that cohabitation could resume, the court concluded that the marriage had irretrievably broken down. Accordingly, the court ordered the dissolution of the marriage and issued a decree nisi to be made absolute after the statutory period.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and the respondent is dissolved.
- Decree nisi shall issue forthwith and to be made absolute after the statutory period.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE 59 OF 2009
J.O……………….……………………………........................................……..PETITIONER
VERSUS
T.M……………..……………...................................…….…………………..RESPONDENT
JUDGMENT
In his petition lodged on 29th October, 2009, J.O, (hereinafter “the petitioner”) seeks dissolution of his marriage to his wife T.M, (hereinafter “the respondent”) on the grounds of cruelty and desertion. In the particulars of cruelty, the petitioner states, inter alia, that the respondent has since the celebration of their marriage persistently verbally abused the petitioner and that she has on several occasions been rough and neglected the petitioner. With respect to desertion, the petitioner states that the respondent has since the year 2002, deserted the matrimonial home and has not resumed cohabitation with the petitioner.
In the petition, the petitioner states that they are blessed with three issues namely: P.O aged 18 years, D.O aged 17 years and M.O aged 10 years who all live with the petitioner and that he was granted their custody in Children’s Case No. 95 of 2009 at Tononoka Children’s Court. The couple lived and cohabitated in Mombasa in Kenya.
The respondent has filed no answer to the petition and did not attend the court when the petition came up before me for hearing on 7th July, 2010. The petition therefore proceeded ex-parte. In his oral testimony in court, the petitioner stated that he married the respondent in the year 1990 at the Registrar’s Office Mombasa and was issued with a Marriage Certificate under the Marriage Act Cap 150, Laws of Kenya. He produced the Marriage Certificate as evidence of the marriage. He further stated that they were blessed with the children mentioned in the petition and lives with them. He added that the respondent deserted the matrimonial home in the year 2002 leaving him with the children. In the year 2009, she went to his house and took the said children with her and filed the said children’s case at Tononoka Court. The court however, granted the petitioner custody of the said children.
The petitioner further testified that the period the respondent has been in desertion is too long and resumption of cohabitation is no longer possible. In his view his marriage to the respondent has irretrievably broken down.
Having considered the evidence adduced before me, which evidence was not controverted, I am satisfied that the petitioner has established the ground of desertion. The respondent left the petitioner in the year 2002 and was, at the time of lodging this petition, in desertion of the petitioner for a period of nearly seven (7) years. In my judgment, there is no hope for this marriage. I see no chance of the respondent ever resuming cohabitation with the petitioner. I therefore find and hold that the marriage between the petitioner and the respondent has irretrievably broken down. The marriage, the subject matter of these proceedings is accordingly hereby dissolved. Decree nisi shall issue forthwith and the same to be made absolute after the statutory period.
I make no order as to costs.
Judgment accordingly.
DATED AND DELIVERED AT MOMBASA THIS 30TH DAY OF AUGUST 2010.
F. AZANGALALA
JUDGE
Read in the absence of the parties. F. AZANGALALA
JUDGE
30TH AUGUST 2010