[2016] KEHC 6499 (KLR)
The court found that the respondent deserted the matrimonial home on 9th March 2011 and that the parties had not cohabited since. The amended petition was presented on 26th February 2015, satisfying the statutory requirement that desertion must persist for at least three years before a petition for divorce can be...
Source-derived case information.
- Citation
- [2016] KEHC 6499 (KLR)
- Parties
- Petitioner: L P N L; Respondent: V N L
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 72 of 2012
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Matrimonial Offences, Desertion, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L P N L
Petitioner
V N L
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's conduct amounted to constructive desertion justifying dissolution of marriage.
- 2 Whether the statutory period for desertion as a matrimonial offence was satisfied.
Ratio Decidendi
The court found that the respondent deserted the matrimonial home on 9th March 2011 and that the parties had not cohabited since. The amended petition was presented on 26th February 2015, satisfying the statutory requirement that desertion must persist for at least three years before a petition for divorce can be brought. The respondent's failure to file any response or participate in the proceedings was interpreted as acquiescence to the dissolution. The court was satisfied that the ingredients of desertion were met and that the matrimonial offence of desertion was duly proved. Accordingly, the ground for desertion succeeded and the petition for dissolution of marriage was allowed.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage solemnized on 3rd December, 1988 at Nairobi District between L P N L and V N M is hereby dissolved.
- Decree absolute to issue forthwith.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 72 OF 2012
L P N L……………..……. PETITIONER
-VERSUS-
V N L……………….……RESPONDENT
JUDGMENT
1. By an amended divorce petition dated 24th February 2015, the petitioner prays for orders that the marriage between him and the respondent be dissolved.
2. The ground upon which the petition is based is constructive desertion, the particulars of which are set out at paragraph 8 of the petition. It is alleged that on 9th March, 2011, the respondent left the matrimonial home to reside elsewhere and the parties have never cohabited since then.
3. From the records, the respondent did not file an answer to petition nor a cross-petition. This cause therefore proceeded undefended. The petitioner gave his sworn testimony on 15th October 2015.
4. The respondent’s failure to file any response to the petition despite being served, can only be interpreted to mean that she is altogether not interested in the said marriage, and would therefore not mind if the said marriage is dissolved.
5. It should be noted that for desertion to constitute matrimonial offence for divorce, it must run for a period of at least three years immediately preceding the presentation of the petition for divorce. The amended petition was presented to court on 26th February 2015. This court has been told that the respondent deserted the matrimonial home on 9th March 2011.
6. The petition for divorce was thus brought within the right time in so far as the ground of desertion is concerned. In the circumstances of the instant case, the ingredients of desertion have been satisfied and this court finds the matrimonial offence of desertion duly proved. Accordingly, the ground for desertion succeeds and the petition is allowed.
7. I therefore make the following orders:
That the marriage solemnized on 3rd December, 1988at Nairobi District between L P N L and V N M be and is hereby dissolved.
Decree absolute to issue forthwith.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF FEBRUARY, 2016.
W. MUSYOKA
JUDGE