[2006] KEHC 444 (KLR)
The court found that the petitioner had provided uncontested evidence that the respondent deserted the matrimonial home in 2001, resulting in the irretrievable breakdown of the marriage. The court was satisfied that the petitioner had not condoned the desertion and that the petition was not brought through...
Source-derived case information.
- Citation
- [2006] KEHC 444 (KLR)
- Parties
- Applicant: M.D.D; Respondent: D.N.M.
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 1 of 2006
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- FI Koome
- Legal Topics
- Customary Marriage, Dissolution of Marriage, Desertion, Irretrievable Breakdown, Matrimonial Relations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.D.D
Applicant
D.N.M.
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be dissolved due to desertion by the respondent.
- 2 Whether the petitioner has proved her case to the required standard for dissolution of marriage under Kisii Customary Law.
- 3 Whether the petition is brought through collusion or condonation.
Ratio Decidendi
The court found that the petitioner had provided uncontested evidence that the respondent deserted the matrimonial home in 2001, resulting in the irretrievable breakdown of the marriage. The court was satisfied that the petitioner had not condoned the desertion and that the petition was not brought through collusion. As the respondent did not contest the petition and the evidence was uncontroverted, the court concluded that the petitioner had met the required standard of proof for dissolution of marriage under Kisii Customary Law. Accordingly, the court granted a decree nisi for three months, to be made absolute if no application is made within that period.
Court Disposition
petition allowed; marriage dissolved
Orders
- A decree nisi of divorce shall issue for a period of three months.
- If no application is made within three months, the decree shall be made absolute.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
DIVORCE CAUSE 1 OF 2006
M.D.D ……….....…………….…... PETITIONER
VERSUS
D.N.M. ……………...………….. RESPONDENT
JUDGMENT
This divorce petition was not contested. The Registrar’s certificate was issued on 19th June 2006 certifying the matter as uncontested. The petitioner sought for orders of dissolution of the marriage between her and the respondent which was solemnized on 5th March 1975 under the Kisii Customary Law of Marriage.
Upon the said marriage, the parties who are domiciled in the Republic of Kenya cohabited in Homabay District and then in Nairobi. The parties have four (4) issues who have attained the age of majority except for T.M.Nwho was born in 1991 but the petitioner confirmed that he moved to live in the United States of America under a green card visa. The respondent who was duly served with the petition did not enter appearance and thus this was undefended petition.
The petitioner proceeded to give evidence in support of the petition. According to the petitioner, the respondent deserted the matrimonial home in the year 2001 and the petitioner has been living alone whereby she has suffered from loneliness, neglect and been deprived of her conjugal rights.
The petitioner made several attempts to have the marriage between herself and the respondent reconciled but this has proved impossible due to the respondent’s negative attitude.
Due to the desertion, the petitioner contended that the marriage is irretrievably broken down and the petitioner has not condoned such desertion and nor is this petition brought through collusion.
For the foregoing reasons, the petitioner sought for an order of dissolution of the marriage.
I have considered the petitioner’s evidence and the pleadings filed herein. The petitioner’s evidence is not at all controverted. I am satisfied that the petitioner has been able to prove her case to the required standard. I am also satisfied that this petition is not brought through collusion but for reasons that the marriage relationship has failed due to the fact that the respondent deserted the petitioner.
Accordingly, I hereby pronounce the decree of divorce, a decree nisi shall issue for a period of three (3) months and thereafter if there is no application. The same shall be made absolute.
The petitioner shall have the costs of this petition.
It is so ordered.
Judgment read and signed on 15th December 2006.
MARTHA KOOME
JUDGE