[2013] KEHC 5566 (KLR)
The court found that the respondent deserted the matrimonial home in September 2010 and did not return, and that the petitioner had not condoned the desertion nor colluded in bringing the proceedings. The statutory period for desertion was dispensed with by a prior court order. The respondent failed to contest the...
Source-derived case information.
- Citation
- [2013] KEHC 5566 (KLR)
- Parties
- Petitioner: M R W; Respondent: A S
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 235 of 2012
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Desertion, Irretrievable Breakdown of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M R W
Petitioner
A S
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's desertion constitutes sufficient ground for dissolution of marriage under the Marriage Act.
- 2 Whether the statutory period for desertion was properly dispensed with by prior court order.
- 3 Whether there was collusion or condonation by the petitioner.
Ratio Decidendi
The court found that the respondent deserted the matrimonial home in September 2010 and did not return, and that the petitioner had not condoned the desertion nor colluded in bringing the proceedings. The statutory period for desertion was dispensed with by a prior court order. The respondent failed to contest the petition, and the allegations remained uncontroverted. The court concluded that the marriage had irretrievably broken down and that the legal requirements for dissolution were satisfied. Accordingly, the marriage was dissolved.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage celebrated between the petitioner and respondent on 5th February 2010 is dissolved.
- Decree nisi to issue forthwith and to be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 235 OF 2012
BETWEEN
M R W………..………………..PETITIONER
AND
A S………..………….……..RESPONDENT
JUDGEMENT
Marriage was celebrated between the parties herein on 5th February 2010 at the Office of Registrar of Marriage at Nairobi. A certificate of marriage serial number [particulars withheld] was issued to them in accordance with the Marriage Act. The couple thereafter took up residence at [particulars withheld] as husband and wife. The couple was not with blessed issue.
The petition in this matter was filed on 14th December 2012. The petitioner accused the respondent of desertion. He left the matrimonial home in September 2010 never to come back. Three years have not lapsed since the date of the respondent left, but I note that the court on 27th July 2012 allowed the filing of the petition herein notwithstanding that three years had not lapsed since the marriage was celebrated.
The petition was served on the respondent on 27th December 2012. He did not appear nor file answer. The Deputy Registrar certified on 14th February 2013 that the matter proceeds for hearing as an undefended cause. As there is no reply, the petitioner’s allegations remain uncontroverted.
It would appear to me that the marriage between the parties herein has irretrievably broken down. It would also appear to me that there has been no collusion between the petitioner and the respondent in the bringing of these proceedings. There is also no evidence that the petitioner has condoned the desertion.
I decree that the marriage celebrated between the petitioner and respondent on 5th February 2010 is dissolved. Decreenisi shall issue forthwith and shall be made absolute after thirty (30) days. There will be no orders on costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS20th DAY OF June, 2013.
W. MUSYOKA
JUDGE