[2004] KEHC 1964 (KLR)
The court found that the petitioner’s allegations of adultery and desertion by the respondent stood unchallenged and were therefore accepted as true and proven beyond reasonable doubt. The evidence established that the parties had lived apart for over seven years without cohabitation, and the respondent had taken...
Source-derived case information.
- Citation
- [2004] KEHC 1964 (KLR)
- Parties
- Applicant: N W G; Respondent: C O N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 18 of 2000
- 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
Applicant
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 petitioner’s allegations of adultery and desertion by the respondent stood unchallenged and were therefore accepted as true and proven beyond reasonable doubt. The evidence established that the parties had lived apart for over seven years without cohabitation, and the respondent had taken another woman as a wife and had a child with her, which constituted adultery. The court concluded that the marriage was a sham from the outset, had irretrievably broken down, and could not be salvaged. Accordingly, the court held that the marriage should be dissolved and a decree nisi issued.
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
20 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 withheld] 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