[2011] KEHC 675 (KLR)
The court found that the petitioner had established the grounds of cruelty and adultery. The cruelty was demonstrated by the respondent's denial of conjugal rights and refusal to communicate, which caused the petitioner mental anguish. Adultery was established by the birth of a child during a period when the...
Source-derived case information.
- Citation
- [2011] KEHC 675 (KLR)
- Parties
- Applicant: M.N.L.; Respondent: E.J.L.
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 14 of 2010
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Legal Topics
- Divorce, Cruelty, Adultery, Desertion, Irretrievable Breakdown, African Christian Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.N.L.
Applicant
E.J.L.
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent was guilty of cruelty towards the petitioner.
- 2 Whether the respondent committed adultery during the subsistence of the marriage.
- 3 Whether the marriage between the petitioner and respondent has irretrievably broken down.
Ratio Decidendi
The court found that the petitioner had established the grounds of cruelty and adultery. The cruelty was demonstrated by the respondent's denial of conjugal rights and refusal to communicate, which caused the petitioner mental anguish. Adultery was established by the birth of a child during a period when the petitioner and respondent had not been intimate for over two years. The court concluded that the marriage had irretrievably broken down and could not be saved. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and the respondent is dissolved.
- Decree nisi to issue forthwith.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
DIVORCE CAUSE NO. 14 OF 2010
M :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
=VERSUS=
E.J.L. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
JUDGMENT
In his petition filed on 15th October, 2010, M.N.L.(hereinafter, “the petitioner”) seeks dissolution of his marriage to his wife e.j.l. , (hereinafter “the respondent”) on the grounds of cruelty, adultery and desertion. In his petition, he states that the respondent has willfully denied him conjugal rights; that the respondent received him with spite and hostility when he visited; that she has refused to talk to him and has, on diverse dates, used threatening language against the petitioner. With regard to adultery, he states that the respondent has committed several acts of adultery with other men during the subsistence of the marriage; that she is now expectant yet they have not been intimated for two years.
With regard to desertion, he states that the respondent has refused and/or neglected to visit him in the U.S.A. for over two years. When the respondent was served with the petition, she filed no answer to the petition and when the petition came up for hearing on 24th October, 2011, it proceeded ex-parte. The petitioner testified as follows:-
He holds both Kenyan and U.S.A. passports. He had married the respondent on 7th January, 2006, under the African Christian Marriage and Divorce Act (Cap 151 Laws of Kenya) and had briefly cohabited at K[....] in Uasin Gishu District of the Rift Valley in the Republic of Kenya. The petitioner then went back to the U.S.A. where he stayed until 26th December, 2007. He did not find the respondent at the Airport or at his home in K[...]. Before he left for the U.S.A. on 13th January, 2008, he had met the respondent only thrice.
The petitioner made another visit to Kenya on 17th December, 2010 and found that the respondent had given birth yet they had not been intimate for over two years. He concluded that the respondent had been adulterous.
In the petitioner’s view, his marriage with the respondent has irretrievably broken down and should be dissolved.
Having considered the uncontested evidence adduced before me, I find that the petitioner has established the grounds of cruelty and adultery. The cruelty comprised the respondent denying the petitioner his conjugal rights and refusing to communicate with him. The petitioner apprehended mental anguish. Denial of conjugal rights, in my view, is a grave form of cruelty which was weighty and would cause extreme emotional injury and cause danger to the petitioner’s life.
With regard to adultery, the birth of a child to the respondent who had not been intimate with the petitioner, obviously demonstrated that the respondent had committed adultery. In the premises, I find that the petitioner has proved to the required standard the grounds of cruelty and adultery. The marriage between the petitioner and the respondent has irretrievably broken down. It cannot be saved. I will therefore allow the petition and order that the petitioner’s marriage to the respondent be and is hereby dissolved. Decree nisi should issue forthwith. The same shall be made absolute after one (1) month thereafter.
I make no order as to costs.
Orders accordingly.
DATED AND DELIVERED AT ELDORET
THIS 2ND DAY OF NOVEMBER 2011
F. AZANGALALA
JUDGE
Read in the presence of:-
Mr. Chaluget holding brief for Mr. Terer for the Petitioner.
F. AZANGALALA
JUDGE
2/11/2011