[2003] KEHC 255 (KLR)
The court found that the Respondent deserted the matrimonial home, engaged in adulterous relationships, and neglected the welfare of the minor child. The Petitioner’s evidence was unchallenged as the Respondent failed to attend the hearing. The court determined that the marriage had irretrievably broken down due to...
Source-derived case information.
- Citation
- [2003] KEHC 255 (KLR)
- Parties
- Petitioner: Jimmy Ibrahim Askar; Respondent: Angela Stolberg
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 29 of 1999
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved; custody to petitioner; maintenance suspended; each party to bear own costs
- Legal Topics
- Divorce, Child Custody, Maintenance Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jimmy Ibrahim Askar
Petitioner
Angela Stolberg
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and Respondent should be dissolved due to desertion and adultery.
- 2 Who should have custody of the minor child of the marriage.
- 3 Whether the Respondent is entitled to maintenance.
Ratio Decidendi
The court found that the Respondent deserted the matrimonial home, engaged in adulterous relationships, and neglected the welfare of the minor child. The Petitioner’s evidence was unchallenged as the Respondent failed to attend the hearing. The court determined that the marriage had irretrievably broken down due to the Respondent's conduct. Given the Respondent's lack of interest in the child and her actions, the court held that custody should be granted to the Petitioner and that maintenance for the Respondent and child should be suspended as long as the child resides with the Petitioner. The dissolution of the marriage was warranted under the Matrimonial Causes Act, and the best...
Court Disposition
petition allowed; marriage dissolved; custody to petitioner; maintenance suspended; each party to bear own costs
Orders
- The marriage between the Petitioner and Respondent is hereby dissolved and a Decree Nisi shall issue.
- The custody of the only child shall be to the Petitioner until further orders of the court if need be to the contrary.
Full Case Text
Judgment text and source record
18 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 29 OF 1999
JIMMY IBRAHIM ASKAR ……………………………… PETITIONER
VERSUS
ANGELA STOLBERG …………………………………… RESPONDENT
JUDGMENT
The Petitioner brought the petition before the court on 21st September, 1999 and served the Respondent who filed a defence on 26th October, 1999. At the hearing however the Respondent failed to attend even after her counsel was granted a second chance. The Petitioner’s evidence is therefore unchallenged.
It was his evidence that he married the Respondent on 18th November, 1996 at the Registrar of Marriages, Mombasa and the couple lived at Mkomani, Mombasa upto 2nd March,1998 when the Respondent deserted her matrimonial home. There is one issue of the marriage who from sometimes in the year 2002 lives with the Petitioner after the Respondent send the child to him. Trouble in the marriage began when the Respondent started going home late and drunk and this progressed to her leaving home for several days without having any regard of the young child. As a result the Petitioner took the child to the Respondent’s mother for care as he was working and the child was of tender age. It was also in evidence that the Respondent was engaged in adulterous relationships and although she denies the same in her defence she does not deny having lived with the two persons namely Florenzo Costelleno and Harold Schmidebinger for many months at different times. The couple has been living separately since March, 1999 and the Respondent does not visit or correspond with the Petitioner. She has not even visited the child since the year 2002 when she send him to live with the Petitioner.
I have noted that an order for maintenance for the Respondent and child had been made in SRMCC No.1 of 1999. However it is clear from the Respondent’s actions that she no longer wants to have custody of the child and I agree with the Petitioner that in the circumstances, the Respondent does not deserve any maintenance. In view of the findings I order as follows
1. The marriage between the Petitioner and Respondent is hereby dissolved and a Decree Nisi shall issue.
2. The custody of the only child shall be to the Petitioner until further orders of the court if need be to the contrary.
3. The order for maintenance is to be suspended for as long as the child lives with the Petitioner.
4. Each party shall bear its costs.
Dated and delivered this 30th day of May 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE