[2016] KEHC 8183 (KLR)
The court found that the petitioner did not prove her allegations of cruelty against the respondent. Instead, the respondent's evidence established that the petitioner was cruel and engaged in adultery, leading to the irretrievable breakdown of the marriage. The court accepted the respondent's testimony regarding...
Source-derived case information.
- Citation
- [2016] KEHC 8183 (KLR)
- Parties
- Petitioner: NNM; Respondent: S K K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 162 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition dismissed; cross-petition allowed; marriage dissolved; joint custody of child granted; each party to bear own costs.
- Judges
- AO Muchelule, DN Musyoka
- Legal Topics
- Divorce, Custody of Children, Maintenance of Children, Matrimonial Misconduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NNM
Petitioner
S K K
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner proved cruelty as a ground for dissolution of marriage.
- 2 Whether the respondent proved cruelty and adultery by the petitioner as grounds for dissolution of marriage.
- 3 Who should have custody, care, and control of the child SWHK.
Ratio Decidendi
The court found that the petitioner did not prove her allegations of cruelty against the respondent. Instead, the respondent's evidence established that the petitioner was cruel and engaged in adultery, leading to the irretrievable breakdown of the marriage. The court accepted the respondent's testimony regarding the petitioner's conduct and concluded that the marriage could not be salvaged. Consequently, the court ordered the dissolution of the marriage. Regarding the child, the court determined that both parties should have joint custody, care, and control, with the respondent having reasonable access. The existing arrangements for physical custody, upkeep, and maintenance were to...
Court Disposition
Petition dismissed; cross-petition allowed; marriage dissolved; joint custody of child granted; each party to bear own costs.
Orders
- A Decree Nisi shall issue and become absolute after 30 days dissolving the marriage.
- The petitioner and respondent shall have joint custody, care, and control of the child SWHK.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
DIVORCE CAUSE NO. 162 OF 2013
NNM.......................................PETITIONER
VERSUS
S K K..................................RESPONDENT
JUDGMENT
1. The petitioner and the respondent got married at the Registrar of Marriages Office in Nairobi on 1st August 2001 under the now repealed Marriage Act (cap 150). They cohabited as husband and wife in several estates within Nairobi between 2001 and 2012, and were blessed with one child called SWHK who was born on 16th July 2008.
2. In the petition dated 5th August 2013 the petitioner sought the dissolution of their marriage on the ground of cruelty, particulars of which were listed. She also prayed that she be granted the sole custody of their child SWHK and that an order be made directing the respondent to contribute towards the upkeep and maintenance of the child.
3. The respondent filed an answer to the petition and cross-petitioned for divorce. He denied all allegations of cruelty levelled against him and put the petitioner to strict proof. He, however, admitted that their marriage had irretrievably broken down but attributed the same to the petitioner's cruelty and adultery, particulars of which he stated in the cross-petition. In his amended answer to the petition, the respondent stated that he was concerned about the explicit exposure of their child to the petitioner's adulterous liaisons. He asked that the petition be dismissed and the cross-petition be allowed, both parties be granted joint legal custody of the child, with actual custody, care and control of the child being vested in both parties equally; that both parties be ordered to contribute equally to the upkeep and maintenance of the child, an order be issued restraining either party from removing the child from the court's jurisdiction without the leave of the court and/or written consent of both parties. Lastly, he asked that the petitioner be ordered to release her personal belongings including furniture, crockery and utensils.
4. The respondent testified that they started having marital problems in August, 2012 when he returned to the country from Afghanistan to attend his father's funeral. In December of 2012 the petitioner informed him that she would be moving out of their matrimonial home. She indeed left. Since then they have not lived together or had any sexual relationship. He testified that several efforts by both family and their church members to reconcile them had not borne any fruit. On 3rd March 2013 she called the respondent to a meeting where she informed him that she was seeing another man. He stated that the marriage cannot be salvaged. He asked that he be granted joint custody, care and control of the child and each to equally contribute towards the upkeep of the minor.
5. I accept the respondent's evidence and find that the petitioner’s conduct was cruel and that she was a confused adulterer. It is obvious from the evidence tendered in court that the marriage has irretrievably broken. I order its dissolution. A Decree Nisishall issue and become absolute after 30 days.
6. The petitioner and the respondent shall have joint custody, care and control of the child SWHK. The respondent shall have reasonable access to the child. The present status regarding physical custody, upkeep and maintenance shall otherwise remain.
7. The petition was not proved and is hereby dismissed. Each party shall pay own costs on the petition and cross-petition.
DATED and SIGNEDatNAIROBIthis 2ND June, 2016.
A.O. MUCHELULE
JUDGE
DATED and DELIVEREDatNAIROBIthis 9TH June, 2016.
W. MUSYOKA
JUDGE