[2018] KEHC 9795 (KLR)
The court found that the Petitioner’s unchallenged testimony established that the Respondent deserted him during his incarceration, committed adultery by cohabiting with another man, and was cruel by cutting off all communication and abandoning him. These acts constituted statutory grounds for dissolution under...
Source-derived case information.
- Citation
- [2018] KEHC 9795 (KLR)
- Parties
- Applicant: JCM; Respondent: TWK
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 5 of 2016
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed. Marriage dissolved.
- Judges
- M Thande
- Legal Topics
- Divorce, Cruelty, Adultery, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JCM
Applicant
TWK
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent's conduct amounts to cruelty, adultery, and desertion under the Marriage Act, 2014.
- 2 Whether the marriage between the Petitioner and Respondent has irretrievably broken down and should be dissolved.
Ratio Decidendi
The court found that the Petitioner’s unchallenged testimony established that the Respondent deserted him during his incarceration, committed adultery by cohabiting with another man, and was cruel by cutting off all communication and abandoning him. These acts constituted statutory grounds for dissolution under Section 66(2) of the Marriage Act, 2014. The court was satisfied that the marriage had irretrievably broken down and that there was no hope of reconciliation. Accordingly, the court pronounced a decree of divorce and ordered the marriage dissolved.
Court Disposition
Petition for divorce allowed. Marriage dissolved.
Orders
- A decree of divorce is pronounced dissolving the marriage between the Petitioner and Respondent solemnized on 26.11.10 at the Registrar’s office in Mombasa.
- Decree nisi to issue and to be made absolute within 1 month.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
FAMILY DIVISION
DIVORCE CAUSE NO. 5 OF 2016
JCM..................PETITIONER
VERSUS
TWK..............RESPONDENT
JUDGMENT
1. JCM the Petitioner married TWK the Respondent on 26. 11. 10 at the Registrar’s Office in Mombasa. Following their marriage the parties cohabited in Malindi where they ran an [particulars withheld] together. The marriage is blessed with 1 child, AW born on 14. 3.11.
2. The Petitioner has filed the Petition herein dated 15. 2.16, seeking dissolution of the marriage on the ground of cruelty. The Petitioner was on 11. 7.11 given a custodial sentence by the Court in Malindi and was released on 15. 12. 15. During his incarceration, the Respondent cohabited with a man of Asian origin known as NHK. She also cut off all communication with the Petitioner during this period. Further the Respondent abandoned the Petitioner upon his release from prison and continued to cohabit with the said Nabir. The conduct of the Respondent caused him emotional and mental torture and humiliation. The Petitioner prayed for the dissolution of the marriage as well as costs.
3. The matter proceeded as undefended as the Respondent though served with the Petition and Notice to Appear failed to file appearance.
4. In his brief testimony in support of the Petition, the Petitioner reiterated the contents of his Petition. According to him, there is no hope for the marriage as the Respondent continues to cohabit with the said NHK. To him, the marriage has irretrievably broken down.
5. The grounds upon which a civil marriage may be dissolved are stipulated in Section 66(2) of the Marriage Act, 2014 and they include:
a. adultery by the other spouse;
b. cruelty by the other spouse;
c. exceptional depravity by the other spouse;
d. desertion by the other spouse for at least three years; or
e. the irretrievable breakdown of the marriage”
Desertion, cruelty and adultery are statutory grounds for the dissolution of a marriage. From the uncontroverted testimony of the Petitioner, the Respondent cut off all communication and deserted him while in prison and cohabited and continues to cohabit with Nabir Hissein Khan with whom she has committed adultery. All these factors have no doubt occasioned the Petitioner untold mental and emotional anguish. The parties have since their separation not resumed cohabitation. I have no reason to doubt the testimony of the Petitioner and I am satisfied that the grounds of cruelty, desertion and adultery have been established. As a result of the Respondent’s conduct the marriage between the parties herein has irretrievably broken down. In the result, I do pronounce a decree of divorce and order that the marriage between the Petitioner and the Respondentsolemnized on 26. 11. 10 at the Registrar’s office in Mombasa be and is hereby dissolved. Decree nisi to issue and the same to be made absolute within 1 month.
DATED, SIGNED and DELIVERED in MOMBASA this 30th day of November 2018
___________________
M. THANDE
JUDGE
In the presence of: -
…………………………………………………………… for the Petitioner
………………………………………………………… for the Respondent
……………………………………………………..…….. Court Assistant