[2004] KEHC 1699 (KLR)
The court found that the petitioner had proved her allegations of cruelty and adultery against the respondent, who failed to defend the petition. The respondent's absence, lack of concern for his family, and failure to provide maintenance rendered him unfit for custody of the minor children. The court held that the...
Source-derived case information.
- Citation
- [2004] KEHC 1699 (KLR)
- Parties
- Applicant: Kathryn Katuti Osano; Respondent: Charles Odero Osano
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 43 of 2003
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody and maintenance orders granted.
- Legal Topics
- Divorce, Custody of Children, Maintenance Orders, Matrimonial Cruelty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kathryn Katuti Osano
Applicant
Charles Odero Osano
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage due to cruelty and adultery.
- 2 Whether the petitioner is entitled to custody of the children of the marriage.
- 3 Whether the petitioner and children are entitled to maintenance from the respondent.
Ratio Decidendi
The court found that the petitioner had proved her allegations of cruelty and adultery against the respondent, who failed to defend the petition. The respondent's absence, lack of concern for his family, and failure to provide maintenance rendered him unfit for custody of the minor children. The court held that the marriage had irretrievably broken down and ordered its dissolution. Custody of the three children was granted to the petitioner, with the respondent ordered to pay maintenance for both the children and the petitioner. The court further directed that the respondent pay the costs of the suit.
Court Disposition
Petition allowed. Marriage dissolved. Custody and maintenance orders granted.
Orders
- Decree Nisi for dissolution of marriage to be made absolute within 6 months.
- Care, custody, and control of the three children granted to the petitioner.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 43 OF 2003
KATHRYN KATUTI OSANO …………………………… PETITIONER
V E R S U S
CHARLES ODERO OSANO ……………………………… RESPONDENT
J U D G M E N T
The Petition was filed by Kathryn Katuti Osano the wife. She contracted a marriage with Respondent under Marriage Act Cap. 150 at Mombasa before Registrar of Marriages. They cohabited in Mombasa. There are children of the marriage now living namely:-
1. Stephanie Awinja
2. Reuben Odero
3. Richard Okumu
All are under The age of 18 years. The petitioner is unemployed and the Respondent is a businessman. Both are domiciled in Kenya. The Petitioner complains of adultery and cruelty as particularised in the petition.
The Respondent though served did not appear and the petitioner was certified as undefended. In her evidence the petitioner confirmed her petition and stated that her husband is a violent man and has beaten her many times and insults her without reason or excuse. He has threatened to kill her and he is a liar. He cheats about his job. He comes home very late and he has love affairs. For the last one and a half years he has not visited the Petitioner and does not provide any maintenance to her or her children. She resides with and maintains her children. She asked for their custody and maintenance.
The court has considered the petition and the evidence offered by the petitioner. I am of the view that there is here no warmth on the relationship of petitioner and her husband. I find she has proved her petition. Since the husband is a man of unknown abode and he does not concern himself with the care of his family. I find him unfit to keep the custody of his young children. In the circumstance l declare dissolution of the marriage between petitioner and respondent. Decree Nisi shall issue to be made absolute within the next 6 months. The care custody and control of the 3 children of the marriage is hereby granted to the petitioner. Their father shall pay maintenance for their upbringing until they attain the age of 18 years. Application for maintenance to be made with notice to the father.
The Respondent shall pay permanent maintenance to the wife amounting to shs. 10,000/- per month from the date hereof for her own maintenance. The Respondent shall pay the costs of this suit.
Dated this 30th day of July, 2004.
J. KHAMINWA
JUDGE
Mr. Mabea holding brief for Mrs. Amadi.
Judgment read in his presence.
J. KHAMINWA
JUDGE