[2002] KEHC 123 (KLR)
The court found that the respondent did not contest the petitioner's allegations of adultery and desertion, and that the evidence presented by the petitioner stood unchallenged. The court accepted the petitioner's account as true and proven beyond reasonable doubt. The court held that the marriage had irretrievably...
Source-derived case information.
- Citation
- [2002] KEHC 123 (KLR)
- Parties
- Petitioner: N W G; Respondent: C O N
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 18 of ??
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Legal Topics
- Divorce, Adultery, Desertion, Irretrievable Breakdown, Matrimonial Causes, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N W G
Petitioner
C O N
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent committed adultery as alleged by the petitioner.
- 2 Whether the parties have deserted each other for a continuous period of seven years.
- 3 Whether the marriage has irretrievably broken down and should be dissolved.
Ratio Decidendi
The court found that the respondent did not contest the petitioner's allegations of adultery and desertion, and that the evidence presented by the petitioner stood unchallenged. The court accepted the petitioner's account as true and proven beyond reasonable doubt. The court held that the marriage had irretrievably broken down due to the respondent's adultery and the parties' separation for over seven years. The marriage was deemed a sham from the outset and incapable of being salvaged. Accordingly, the court ordered the dissolution of the marriage and issued a decree nisi.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties herein is hereby declared dissolved, and a decree nisi should issue forthwith.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO.18 OF 2000
IN THE MATRIMONIAL CAUSE ACT
N W G……………………….……PETITIONER
=V E R S U S=
C O N……………………………RESPONDENT
JUDGMENT OF COURT
The Petition filed by N W G was served upon the Respondent who until the matter came before the court for a hearing did not respond. He did file appearance but filed no Answer to the Petition.
The parties got married before the Registrar of Marriages and were given a Certificate of Marriage No.[particulars witheld] dated 13. 9.1994, copy of which was produced. In 1995 May, the Petitioner alleges catching her husband in the act of adultery with Petitioner’s secretary in the Petitioner’s office. They by then had stayed for about a year without cohabitation. They have lived apart for over seven years during which time there has been no cohabitation. Later the Respondent took another woman for a wife and they have one child as such husband and wife or whatever it may amount to. Such cohabitation and getting a child out of it implies adultery. Also, whether by the act of the Respondent as alleged or by that of the Petitioner, the parties have separated and deserted each other for seven years. The Petitioner blames this on the Respondent but Respondent answers not. It therefore goes and it is accepted that what the Petitioner blames upon the Respondent is true.
Finally, the marriage clearly from the start was not meant to be one. It was not treated as one. It was a sham. And once more the Petitioner says that it was all the fault of the Respondent. The Respondent does not say a word in protest. The presumptions are that what the Petitioner has said is true. It stands in the record unchallenged. It is accordingly accepted by this court as true and proven beyond a reasonable doubt.
There is no way such a marriage can be salvaged. It is broken beyond repair. It should be brought to a legal end so that the parties can go each is/her way. Accordingly I make the following orders:-
ORDERS:
1. The marriage between the parties herein is hereby declared dissolved, and a decree nisi should issue forthwith.
2. No order as to costs.
Dated and delivered at Mombasa this 30th day of April, 2002.
D. A. ONYANCHA
J U D G E