[2014] KEHC 7339 (KLR)
The court found that the petitioner had proved cruelty and desertion by the respondent, as evidenced by his absence since 2010, lack of contact with the youngest child, and failure to contest the petition. The marriage was deemed to have broken down irretrievably. The court also held that both parents are legally...
Source-derived case information.
- Citation
- [2014] KEHC 7339 (KLR)
- Parties
- Petitioner: K N M; Respondent: A M M
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 2 of 2011
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody granted to petitioner. Maintenance ordered for both parents. Costs to petitioner.
- Judges
- LN Mutende
- Legal Topics
- Divorce, Child Custody, Child Maintenance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K N M
Petitioner
A M M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has established grounds for dissolution of marriage on cruelty and desertion.
- 2 Whether the petitioner is entitled to custody of the children of the marriage.
- 3 Whether the respondent should be ordered to maintain the children.
Ratio Decidendi
The court found that the petitioner had proved cruelty and desertion by the respondent, as evidenced by his absence since 2010, lack of contact with the youngest child, and failure to contest the petition. The marriage was deemed to have broken down irretrievably. The court also held that both parents are legally obligated to maintain their children, and since the respondent showed no interest or involvement, custody was granted to the petitioner. The petitioner's claim for maintenance was not particularized, but the statutory obligation for both parents to provide maintenance was affirmed. Costs were awarded to the petitioner.
Court Disposition
Petition allowed. Marriage dissolved. Custody granted to petitioner. Maintenance ordered for both parents. Costs to petitioner.
Orders
- The marriage between the petitioner and respondent celebrated on 28th December, 2005 is dissolved.
- A decree nisi shall issue forthwith to be made absolute after six months.
Full Case Text
Judgment text and source record
22 paragraphs
No. 150/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
DIVORCE CAUSE NO. 2 OF 2011
K N M..........................................................PETITIONER
VERSUS
A M M ......................................................RESPONDENT
JUDGMENT
The Petitioner married the respondent on the 28th December, 2005 at the Registrar’s Office Nairobi. A certificate of marriage was duly issued [particulars withheld]. They cohabited at Nairobi Karen, Athi River and Machakos respectively until 2011. They were blessed with two (2) issues of the marriage, K.A.N.M. and C.A.M.
The Petitioner now seeks dissolution of their marriage on grounds of cruelty and desertion. She also seeks custody of the two (2) children of the marriage, maintenance of the children and costs of the petition.
At the hearing the petitioner stated that the Respondent was violent and abusive and he deserted their matrimonial home in the year 2010 such that he did not even see their second child. He disposed of their stock at the wines and spirit shop in Machakos, an investment carried out by the Petitioner. An effort by the Petitioner to have the matter resolved by elders was fruitless.
The Respondent having been served with a Notice to Enter Appearance did file a notice to that effect. He however, failed to file an answer to the Petition. The same therefore stood undefended. He was notified of the hearing but neglected and/or refused to act.
Having heard the Petitioner, I am satisfied that the marriage between the Petitioner and the Respondent has broken down irretrievably. The youngest child who is now aged three (3) years having not been seen by the respondent since birth is proof of neglect and lack of interest on the part of the respondent in his family. Evidence of cruelty is also not controverted.
In the premises;
I do grant divorce sought. The marriage between the petitioner and the Respondent celebrated on the 28th December, 2005 be and is hereby dissolved. A decree nisi shall issue forthwith to be madeabsolute after the statutory period of six months.
One of the reliefs sought by the petitioner is maintenance of the children by the respondent. However, at the hearing the petitioner did not state how she wished to have the children maintained. However, the law would require both parents to be responsible for maintenance of the children of the marriage. This is an obligation they cannot abdicate.
ii) Custody of the two (2) children of the marriage be and is by granted to the petitioner
iii) The children of the marriage shall be entitled to maintenance by both the Petitioner and Respondent
iv) The petitioner shall have costs.
DATED, DELIVERED and SIGNEDthis 15thday of JANUARY, 2014.
L.N. MUTENDE
JUDGE