[2016] KEHC 8216 (KLR)
The court found that the petitioner had established cruelty on the part of the respondent, including neglect, abusive conduct, and harassment, which made cohabitation intolerable. The court was not satisfied that adultery had been proved. The evidence showed that the parties had lived apart for five years, and all...
Source-derived case information.
- Citation
- [2016] KEHC 8216 (KLR)
- Parties
- Petitioner: N J K; Respondent: S K B
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 223 of 2014
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Cruelty, Adultery, Matrimonial Breakdown
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N J K
Petitioner
S K B
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent treated the petitioner with cruelty warranting dissolution of marriage.
- 2 Whether the respondent committed adultery as alleged by the petitioner.
- 3 Whether the marriage has irretrievably broken down.
Ratio Decidendi
The court found that the petitioner had established cruelty on the part of the respondent, including neglect, abusive conduct, and harassment, which made cohabitation intolerable. The court was not satisfied that adultery had been proved. The evidence showed that the parties had lived apart for five years, and all attempts at reconciliation had failed. The marriage had irretrievably broken down, justifying its dissolution. The court noted that the petitioner had withdrawn her claim for maintenance and that issues of child custody and maintenance were pending before the Children’s Court. Accordingly, the marriage was dissolved, and a decree nisi was issued, with no order as to costs.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and the respondent celebrated on 15th February 2008 is dissolved.
- Decree nisi to issue forthwith, to be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
DIVORCE CAUSE NO. 223 OF 2014
N J K………………………………………PETITIONER
VERSUS
S K B……….…………………………...RESPONDENT
JUDGEMENT
1. Marriage was celebrated between the parties herein on 15th February 2008 at the Office of the Registrar of Marriages, Nairobi. A certificate of marriage serial number [particulars withheld] was issued to them in accordance with the Marriage Act, Cap 150, Laws of Kenya (now repealed). The parties cohabited thereafter at [particulars withheld] in Nairobi, Kenya. The couple was blessed with issue – T K B – born on 28th August 2009.
2. It is pleaded that since the celebration of the marriage the respondent has treated the petitioner with cruelty. It is averred that the petitioner has neglected to provide for the petitioner and the child of the marriage, has been going out and not coming back home, comes home very late in the night or early morning while drunk, and has denied petitioner conjugal rights. It is alleged that he has committed adultery with several women; some of those named are Carol Atieno, Susan Karigo and Stela Lengima.
3. The petitioner pleads that on account of the cruelty and adultery pleaded she was forced to move out of the matrimonial home in September 2011, and she has lived separately from the respondent since then.
4. She also pleads that there is a pending children’s case, being Nairobi Children’s Court Children’s Case No. 560 of 2013, where she seeks custody and maintenance of the child of the marriage.
5. On 5th November 2015, the Deputy Registrar cleared the petition to proceed as undefended.
6. The Petitioner testified on 3rd March 2016. Her testimony gave vent to the allegations made in her petition. She added though that she attempted to reconcile with the respondent to no avail. She also testified that the respondent has been using force in trying to get her to resume cohabitation. He goes to her work place and causes trouble, including assaulting a colleague of hers on accusations of infidelity. He is said to pay security to trail her around.
7. Although there is a prayer for maintenance of the petitioner by the respondent, the petitioner withdrew that prayer at the hearing. She stated that she did not want the respondent to maintain her so long as he maintained the child of the marriage.
8. From the material placed before me it is plain that the marital relationship between the petitioner and the respondent has totally broken down. I am satisfied that the respondent has been cruel to the petitioner. The adultery alleged has not been proved. I have noted that cohabitation has been broken, and parties have been apart for five (5) years. The marriage no doubt has practically come to an end.
9. In the circumstances, I am moved to make the following final orders:-
(a) That the marriage between the petitioner and the respondent, celebrated on 15th February 2008, is hereby dissolved;
(b) That decree nisi shall issue forthwith, to be made absolute after thirty (30) days; and
(c) That there shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 18TH DAY OF NOVEMBER, 2016.
W. MUSYOKA
JUDGE