[2006] KEHC 3120 (KLR)
The court found that the respondent's evidence of cruelty, adultery, and desertion by the petitioner was credible and uncontroverted, as the petitioner failed to attend court or contest the allegations. The respondent's testimony was accepted as truthful, and there was no evidence of condonation, connivance, or...
Source-derived case information.
- Citation
- [2006] KEHC 3120 (KLR)
- Parties
- Petitioner: J M M; Respondent: Z N M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 51 of 2005
- Procedural Posture
- Divorce Case / Judgment
- Outcome
- petition dismissed, cross-petition allowed, marriage dissolved
- Judges
- KH Rawal
- Legal Topics
- Divorce, Custody of Children, Adultery, Cruelty, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J M M
Petitioner
Z N M
Respondent
Procedural Posture
Divorce Case / Judgment
Legal Issues
- 1 Whether the petitioner is guilty of cruelty, adultery, and desertion warranting dissolution of the marriage.
- 2 Whether the respondent is entitled to custody, care, and control of the children of the marriage.
- 3 Whether the respondent has condoned, connived at, or colluded in the acts complained of.
Ratio Decidendi
The court found that the respondent's evidence of cruelty, adultery, and desertion by the petitioner was credible and uncontroverted, as the petitioner failed to attend court or contest the allegations. The respondent's testimony was accepted as truthful, and there was no evidence of condonation, connivance, or collusion. The court held that no reasonable wife could be expected to remain in the marriage under such circumstances, and thus the grounds for dissolution were established. The court further found that the respondent had been the sole caregiver for the children since the separation, and it was in their best interests for custody, care, and control to be granted to the...
Court Disposition
petition dismissed, cross-petition allowed, marriage dissolved
Orders
- The marriage between the petitioner and respondent is dissolved.
- Custody, care, and control of the two children of the marriage are granted to the respondent's mother.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Divorce Case 51 of 2005
J M M ..…………........................................…………….. PETITIONER
VERSUS
Z N M ………………......................................……. RESPONDENT
JUDGMENT
The date of hearing of this cause was fixed by the Petitioner’s Advocates and at the time of hearing, neither the Petitioner nor his Advocate presented themselves to the court.
The Respondent and her Advocate on whom the notice of hearing date was served were present before the court. The Learned Counsel for the Respondent, in the circumstances, applied for order of dismissal of the petition for non-prosecution and that of hearing the cross-petition of the Respondent exparte.
I allowed the application and the Respondent testified whose evidence remained uncontroverted. The Respondent struck me as a truthful witness who gave her evidence with honesty and occasional emotions.
She agreed that she was married to the Petitioner and produced a copy of their marriage certificate stating that the original certificate was with the Petitioner. In any event the Petitioner also has averred the same.
Since their marriage on 29th October, 1996 they lived together as wife and husband upto 2000. The marriage bore two children namely;
1. S W M born on 1997
2. JM M born on 1999.
Both these children are living with the Respondent/wife since she was forced to move out of the matrimonial home after she saw the Petitioner in an act of sexual activity with her neighbour on 14th March, 2000. She candidly stated that the scene which she saw with her own eyes shattered her completely forcing her to leave the matrimonial home. She also added that after two weeks when she went to the house to collect her belongings, she found the under wears and clothing of a woman. This fact was the last stroke on her scant confidence and dignity as the Petitioner’s wife.
Her cross-petition was filed on 21st April, 2005 which is evidently after the lapse of three years from the date of her constructive desertion. She said that since then the Petitioner has not communicated with her or her children, whom she is looking after since 14th March, 2000.
With the aforesaid clear evidence, which I accept as credible, I can find that the Respondent has proved that the Petitioner is guilty of acts of cruelty adultery, and desertion. I find so as no right thinking wife can stay under one roof with a husband who commits those acts without seeking atonement.
She had also testified and I believe the same to be true that she has not connived at or condoned the said acts. Moreover she testified that she has not colluded with the Petitioner in prosecuting her cross-petition.
I therefore grant her the orders that:
1. The marriage in fact celebrated between her and the Petitioner be dissolved.
2. The custody, care and control of two issues of the marriage named herein before be granted to the Respondent’s mother.
3. Decree nisibe made absolute within 90 days from today.
K.H. RAWAL
JUDGE
24. 3.2006