[2006] KEHC 3119 (KLR)
The court found that the Respondent deserted the Petitioner for more than three years prior to the filing of the petition, based on the uncontroverted and credible testimony of the Petitioner. The Respondent failed to maintain, communicate with, or cohabit with the Petitioner and the child since 2001. The court was...
Source-derived case information.
- Citation
- [2006] KEHC 3119 (KLR)
- Parties
- Petitioner: L M M; Respondent: K N N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 7 of 2005
- Procedural Posture
- Divorce Case / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of child granted to Petitioner.
- Legal Topics
- Dissolution of Marriage, Desertion, Child Custody, Maintenance of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L M M
Petitioner
K N N
Respondent
Procedural Posture
Divorce Case / Judgment
Legal Issues
- 1 Whether the Respondent deserted the Petitioner for a continuous period of more than three years prior to the filing of the petition.
- 2 Whether the Petitioner is entitled to dissolution of marriage on grounds of desertion.
- 3 Whether the Petitioner should be granted custody, care, and control of the child of the marriage.
Ratio Decidendi
The court found that the Respondent deserted the Petitioner for more than three years prior to the filing of the petition, based on the uncontroverted and credible testimony of the Petitioner. The Respondent failed to maintain, communicate with, or cohabit with the Petitioner and the child since 2001. The court was satisfied that the Petitioner had not connived, condoned, or colluded in the desertion or the petition. The legal requirements for dissolution of marriage on the ground of desertion were met. Furthermore, the Respondent neglected the child of the marriage, who is of tender years, and the Petitioner has been the sole caregiver. The court therefore granted dissolution of the...
Court Disposition
Petition allowed. Marriage dissolved. Custody of child granted to Petitioner.
Orders
- The marriage celebrated between the parties is dissolved.
- Custody, care, and control of the child L N is granted to the Petitioner.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Divorce Case 7 of 2005
L M M ……..............................………………….. PETITIONER
VERSUS
K N N ………………................................……. RESPONDENT
JUDGMENT
The Petition herein was properly certified as an undefended cause by the Learned Deputy Registrar.
The Petitioner testified to support her petition seeking dissolution of her marriage. The fact of her marriage with the Respondent was proved by production of the Marriage Certificate (Exhibit 1)
The marriage bore one issue namely L N born on 4th November, 2001.
The marriage was celebrated on 9th February, 2001. According to the Petitioner, the Respondent left to go to Australia after two weeks from the date of marriage. Thus their cohabitation was only for duration of two weeks, because after his return from Australia in 2002 the Respondent went to live with his parents in Nakuru while she was living with her parents due to departure of the Respondent. As per her uncontroverted testimony, since 2001 the Respondent has not either maintained her or the child of the marriage or has cohabited with her. He has also not communicated with them. As per her information the Respondent had started living with another woman and has completely deserted her and the child of the marriage whom she has looked after since the birth. The Petition is filed on 13th January, 2005 which period is more than three years since the date of desertion which was in February, 2001.
She stressed that she has not connived at the said desertion as well as has not condoned the same. Lastly she also testified that she has not colluded with the Respondent in presenting or prosecuting this petition.
The Petitioner’s testimony apart from being uncontroverted was very forthright and I have no hesitation to believe that she spoke the truth.
In the premises, I do find that the Respondent is guilty of an act of deserting the Petitioner for more than three years prior to the date of filing the Petition.
I therefore order that the marriage in fact celebrated between the parties herein be dissolved.
From the evidence before me, I do find that the Respondent has neglected to look after the child of the marriage namely L N who is a female child and of tender years and thus I also order that the custody, care and control of the said child be granted to the Petitioner herein.
I further direct that the decree nisi be made absolute within 90 days from the date hereof.
K.H. RAWAL,
JUDGE
24. 3.06