[2008] KEHC 1961 (KLR)
The court found that the Petitioner had proved, through uncontroverted evidence, that the Respondent deserted him without reasonable cause for a period exceeding three years. The Respondent left the matrimonial home with the children and household goods and has not been seen or heard from since. The marriage was...
Source-derived case information.
- Citation
- [2008] KEHC 1961 (KLR)
- Parties
- Applicant: L.K.K; Respondent: B.N.K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 100 of 2006
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed; marriage dissolved; custody of last born child granted to Petitioner; no order as to costs.
- Judges
- KH Rawal
- Legal Topics
- Dissolution of Marriage, Desertion, Custody of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
L.K.K
Applicant
B.N.K
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent deserted the Petitioner without reasonable cause for a continuous period of at least three years.
- 2 Whether the marriage between the Petitioner and Respondent has irretrievably broken down.
- 3 Whether the Petitioner is entitled to custody, care, and control of the last born child.
Ratio Decidendi
The court found that the Petitioner had proved, through uncontroverted evidence, that the Respondent deserted him without reasonable cause for a period exceeding three years. The Respondent left the matrimonial home with the children and household goods and has not been seen or heard from since. The marriage was deemed irretrievably broken down as the parties have not seen each other and the Respondent has not even seen the children. The statutory requirements for dissolution of marriage on the ground of desertion were satisfied. The Petitioner was also granted custody, care, and control of the last born child, whom he had cared for since the Respondent's departure.
Court Disposition
Petition allowed; marriage dissolved; custody of last born child granted to Petitioner; no order as to costs.
Orders
- The marriage solemnized between the parties is dissolved.
- Custody, care, and control of the last born son, G.M.K, is granted to the Petitioner.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
DIVORCE CAUSE 100 OF 2006
L.K.K........................................PETITIONER
VERSUS
B.N.K.....................................RESPONDENT
JUDGMENT
The Petitioner/husband filed this Divorce Cause on 19th July, 2006.
According to his short and candid testimony, after Customary marriage celebrated in 1980, with the Respondent, they solemnized their marriage under the Marriage Act (Cap 150) on 28th April, 1989. They cohabited at a premises in Langata after the marriage and they have four children of the marriage, namely;
1. C.M – born on 25th May, 1982.
2. D.K.K – born on 24th December,1983.
3. P.P.K – born on 24th December, 1988.
4. G.M.K – born on December, 1990.
The Petitioner works as a Flight Manager. He has worked with this company [PARTICULARS WITHHELD] since 1974.
He recalled 19th July, 1993 and testified that on that night he was working at night shift and the Respondent was supposed to pick him up from the Airport at 1. 00 a.m. On finishing his work, not seeing her, he called home and she picked up the phone stating she was coming. He waited for her and after some time called home again and no one picked the phone. He then took a taxi to go home and was shocked to see an open gate and unlocked door of the house. When he switched on the light, to his dismay and disbelief, an empty house was facing him without the Respondent, the children, the furniture and household goods.
Since that day the Respondent simply disappeared from his life. He stressed that he has not seen her since that day and not heard from her. He denied that he was accessory to the desertion by the Respondent. After about four years the last three children came back to him as the first daughter got married and moved to U.S.A. He has from that date, single handedly taken care of the children and all their needs and welfare.
For personal reasons, he did not want to pursue the allegation of cruelty he had made against the Respondent and which are not denied or responded to by her.
He denied that he has presented this petition or prosecuted the same in collusion with the Respondent.
On the above evidence, the Petitioner seeks the dissolution of his marriage with the Respondent.
It is evident from the uncontroverted evidence of the Petitioner that the Respondent had deserted the Petitioner without any reasonable cause. She disappeared in the darkness of night leaving an empty house for the Petitioner.
The petition is filed after the prescribed period of three years.
I also note that the marriage is irretrievably broken down as the parties have not seen each other and the Respondent has not even seen the children.
In the premises, I do find that the Petitioner has proved that the Respondent has deserted him without any reasonable cause for a period of more than three years since the date of filing this petition and I grant the order that the marriage solemnized between the parties be dissolved.
The Petitioner has asked for order of custody, care and control of the last born son, namely G.M.K whom he has cared for since many years, and who has not till to-date attained the required age. I do grant that prayer.
There shall not be any order on costs as the petitioner did not ask for any.
Decree nisi be made absolute within 60 days due to the circumstances of this case.
Dated and signed at Nairobi this 10th day of July, 2008.
K.H. RAWAL
JUDGE
10. 7.08