[2018] KEHC 9675 (KLR)
The court found that the Respondent deserted the Petitioner in July 1984 and has not returned since, with no evidence of cohabitation as husband and wife for over three decades. The court was satisfied that the marriage had irretrievably broken down due to desertion and that there was no prospect of reconciliation....
Source-derived case information.
- Citation
- [2018] KEHC 9675 (KLR)
- Parties
- Petitioner: L G M; Respondent: B J M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 114 of 1991
- Procedural Posture
- Divorce Cause / Ruling
- Outcome
- Petition allowed in part; marriage dissolved; no order as to costs.
- Legal Topics
- Divorce, Desertion, Custody of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L G M
Petitioner
B J M
Respondent
Procedural Posture
Divorce Cause / Ruling
Legal Issues
- 1 Whether the marriage between the Petitioner and Respondent should be dissolved on the ground of desertion.
- 2 Whether custody, care and control of the children should be granted to the Petitioner.
- 3 Whether costs should be awarded to the Petitioner.
Ratio Decidendi
The court found that the Respondent deserted the Petitioner in July 1984 and has not returned since, with no evidence of cohabitation as husband and wife for over three decades. The court was satisfied that the marriage had irretrievably broken down due to desertion and that there was no prospect of reconciliation. The prayer for custody was deemed spent as all children were adults, and costs were denied because the Respondent could not be traced and was served by substituted means. The court accordingly granted the dissolution of the marriage on the ground of desertion, with each party to bear its own costs.
Court Disposition
Petition allowed in part; marriage dissolved; no order as to costs.
Orders
- The marriage between the Petitioner and Respondent is hereby dissolved on the ground of desertion.
- Each party to bear its own costs of the Petition.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
DIVORCE CAUSE NO. 114 OF 1991
L G M..........................................................................PETITIONER
VERSUS
B J M.........................................................................RESPONDENT
RULING
1. The Petitioner herein L G M (hereafter referred to as the Petitioner) filed this Petition against B J M (hereafter referred to as the Respondent on 22nd November, 1991.
2. The Petitioner and the Respondent got married on 2/8/1969 at SHERIA HOUSE, NAIROBI in the Republic of Kenya in a Civil Marriage.
3. The Petitioner is seeking dissolution of the marriage on the ground of desertion.
4. The marriage was blessed with three issues namely:
(a) H M - born on 29. 12. 1969
(b) K M - born on 8. 03. 1973
(c) M M - Born on 21. 7.1977
5. The Petition was served upon Respondent and she filed an answer on 20. 12. 1991 in which she asked for access to her children.
6. The Petitioner sought leave of the court to serve the Respondent through advertisement.
7. The Registrar of this Court issued a Certificate and confirmed that the pleadings were in order and that the case should proceed as an undefended cause.
8. The Petitioner who testified as PW1 said he got married to the Respondent on 2. 8.1969 and after the marriage, they lived in Nairobi at [particulars withheld] then at [particulars withheld] then they moved to [particulars withheld] and finally at [particulars withheld].
9. He said the marriage was blessed with three issues namely H, K and M M who are all adults now.
10. Pw 1 said in 1983, the Respondent left their house and returned in 1984 and then again in July 1984 she left the Matrimonial home and she was not been seen to date.
11. Pw1 said he learnt later that she travelled to Malawi to look for her roots and came back in 1986 and again went to England with the boys where she was involved in an accident but the boys were not injured.
12. Pw1 said he filed this suit in 1991 but he did not proceed as the best maid of their wedding was trying to persuade him not to proceed but efforts to reconcile them failed when they could not trace the Respondent.
13. The Petitioner said he revived the suit this year and asks the Court to grant the Petition on the grounds of desertion.
14. I have perused the proceedings and pleadings in this case. The Petitioner was seeking three orders in the petition.
(i) Dissolution of the Marriage.
(ii) Custody, Care and Control of the Children
(iii) Costs of and incidental to this cause.
15. I find that there is evidence that the Petitioner and the Respondent have not stayed as husband and wife since 1984 when the Respondent deserted him. I find that there is no love lost between the parties and the marriage serves no useful purpose.
16. I accordingly grant prayer one for dissolution of the marriage on the grounds of desertion.
17. However, the second prayer for custody, care and control of the children is spent as the children are now all adults. The third prayers for costs cannot also be granted as the respondent who was served by substituted means cannot be traced.
18. I accordingly allow the prayer that the marriage between Petitioner and the Respondent be and is hereby dissolved. Each party to bear its own costs of the Petition. Decree Nisi to issue accordingly and to be made absolute after 30 days.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 2ND DAY OF NOVEMBER, 2018
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI
IN THE PRESENCE OF:
The Petitioner in person.
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