[2003] KEHC 252 (KLR)
The court found that the petitioner had established, on a balance of probabilities, that the respondent deserted her without just cause and failed to maintain the family. The respondent did not contest the petition, and the Registrar certified the cause as undefended. The evidence presented, including the marriage...
Source-derived case information.
- Citation
- [2003] KEHC 252 (KLR)
- Parties
- Applicant: Ruth Njeri Kimachia; Respondent: Joseph Kimachia Wamwiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 45 of 2002
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of children granted to petitioner. Costs awarded to petitioner.
- Judges
- JA Aluoch
- Legal Topics
- Divorce, Custody of Children, Maintenance, Matrimonial Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Njeri Kimachia
Applicant
Joseph Kimachia Wamwiri
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage including adultery, cruelty, desertion, and neglect.
- 2 Whether the petitioner is entitled to custody of the children of the marriage.
- 3 Whether the respondent should be ordered to pay costs of the proceedings.
Ratio Decidendi
The court found that the petitioner had established, on a balance of probabilities, that the respondent deserted her without just cause and failed to maintain the family. The respondent did not contest the petition, and the Registrar certified the cause as undefended. The evidence presented, including the marriage certificate, birth certificates, and maintenance order, supported the petitioner's claims. The court was satisfied that the grounds for dissolution of marriage were proved and that the petitioner had not condoned or connived in the respondent's conduct. Accordingly, the marriage was dissolved, custody of the children granted to the petitioner, and costs awarded against the...
Court Disposition
Petition allowed. Marriage dissolved. Custody of children granted to petitioner. Costs awarded to petitioner.
Orders
- The marriage between the petitioner and respondent is dissolved.
- Custody of the children of the marriage is granted to the petitioner, with reasonable access to the respondent if he requests it.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 45 OF 2002
R K W …………. PETITIONER
VERSUS
J K W ………………RESPONDENT
J U D G E M E N T
Ruth Njeri Kimachia petitioned the court to dissolve her marriage to Joseph Kimachia Wamwiri, on grounds of adultery, cruelty, desertion and neglect.
The 2 got married on 28th December, 1983 at the Attorney General’s chambers in Nairobi. She produced the original marriage certificate as Ex.1.
The couple had two children as appears in para 3 of the petition. She produced their birth certificates as Ex.2. The couple lived at Kenyatta Hospital staff quarters, as she is a nurse, whilst the respondent is a businessman. The petitioner recalled that in March, 1989, the respondent left the matrimonial home to go and live with another woman. She sought an order for maintenance and separation in Resident Magistrate’s Maintenance Cause No. 175 of 1999. She produced the order as Ex.3. The court ordered the respondent to pay Kshs.2,500/=p.m. which he paid only once, and stopped. The petitioner complained that before the respondent left her, he used to pick quarrels with her and also used to live away from home for weeks.
The couple never had a chance to discuss their problems because the respondent used to refuse to sit down and discuss. The petitioner has not condone or connived all the respondent’s desertion etc. She also confirmed that this suit is not brought in collusion with the respondent, who was served with the petition, but refused and or failed to respond to it? The Registrar certified the cause as undefended. From the evidence I considered from the petitioner, I am satisfied that it is the respondent who deserted her, for no just cause.
I therefore grant an order dissolving the marriage between the respondent and the petitioner. I also grant custody of the children of the marriage to the petitioner, with reasonable access to the respondent, who is the natural father. However, this would have to be arranged if the respondent comes forward to ask for access.
Finally, I order the respondent to pay the costs occasioned by these proceedings.
Dated at Nairobi this 27th day of March, 2003.
JOYCE ALUOCH
JUDGE