[1999] KEHC 101 (KLR)
The court found that both parties had been separated since 1983, with the petitioner having left the matrimonial home to live and work with the church. The evidence did not support the petitioner's claim of desertion by the respondent; rather, the petitioner herself was found to have deserted the respondent. There...
Source-derived case information.
- Citation
- [1999] KEHC 101 (KLR)
- Parties
- Petitioner: M M M; Respondent: W M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 28 of 1993
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Decree nisi of divorce granted; no order as to costs.
- Legal Topics
- Divorce, Matrimonial Causes, Desertion, Adultery, Cruelty, Decree Nisi
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
M M M
Petitioner
W M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has established grounds for divorce under the Matrimonial Causes Act.
- 2 Whether desertion, adultery, or cruelty has been proved by either party.
- 3 Whether the respondent is entitled to any relief under section 12 of the Matrimonial Causes Act.
Ratio Decidendi
The court found that both parties had been separated since 1983, with the petitioner having left the matrimonial home to live and work with the church. The evidence did not support the petitioner's claim of desertion by the respondent; rather, the petitioner herself was found to have deserted the respondent. There was no evidence presented to substantiate allegations of adultery or cruelty by either party. The court recognized that the marriage had irretrievably broken down and that neither party wished to reconcile. Applying the relevant provisions of the Matrimonial Causes Act, the court pronounced a decree of divorce, to be a decree nisi for at least six months, and made no order as to...
Court Disposition
Decree nisi of divorce granted; no order as to costs.
Orders
- A decree of divorce is pronounced, to be a decree nisi for not less than six months.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 28 OF 1993
M M M........................... PETITIONER
VERSUS
W M ............................................... DEFENDANT
JUDGMENT
The Petitioner for divorce in this cause was filed on the 23. 3.93 and brought under section 8(1) (b) of the Matrimonial Causes Act.
The parties are said to be married in 1965.
In 1983, the petitioner stated that the respondent was the one who deserted her.
In her petitioner she had alleged cruelty and adultery on the part of the respondent. The petitioner in her evidence before the court relied on desertion.
By profession, the Petitioner was attached to the Teachers Service Commission. She further was attached to the Methodist Church. On retiring she continues to serve as a volunteer with the church who accommodate her.
The advocate for the Petitioner notified the court in her opening address that the parties had settled the issue of property. The Petitioner was no longer pursuing the issue of maintenance nor the costs of this cause. In reply to the Petition and cross-petition filed by the respondent, he had alleged that there was adultery on the part of the respondent.
During the trial, the respondent gave no evidence. His advocate stated that he had strict instruction not to challenge or prosecute the cross petition nor call any evidence.
From the evidence before me it appear that in 1983, the petitioner appears to have moved away from the respondent to live with the church as an employee. It is difficult to see how the respondent would have deserted her.
I nonetheless find that the parties relationship appears to be restrained.
From the pleading above, there is indication of suspicious on both sides on the question of adultery committed or alleged to have been committed by both sides.
The petitioner did mention one incident of cruelty in her petition but was never relied on in evidence or proved.
Under Section 12 of the Matrimonial Cause (last part)
“The court may give to the respondent the same relief to which he[ or she] would have been entitled if he [or she] had presented a petition seeking such relief.”
I believe that the Petitioner by being away from the Matrimonial home since 1983 is also guilty of desertion.
I recognise that the parties do not wish to make this marriage work.
They have been apart since 1983.
Under Section 10 of 2(c) of the Matrimonial Cause.
I am satisfied that the petitioner is not presented or prosecuted in collision with the respondent or neither of the respondent.
I hereby pronounce a decree of divorce. This decree, under section 15(1) of the Matrimonial Cause shall be a decree nisi and shall remain so for a period not less than six months.
There will be no orders as to costs.
Dated this 24th day of march, 1999 at Nairobi.
M.A. ANG’AWA
JUDGE