[2014] KEHC 4684 (KLR)
The court found that the respondent's conduct, including taunting the petitioner for not fathering a son and bearing children with another man during the marriage, constituted both cruelty and adultery. The parties had lived separately for approximately fifteen years, which the court deemed sufficient evidence of...
Source-derived case information.
- Citation
- [2014] KEHC 4684 (KLR)
- Parties
- Petitioner: N S J; Respondent: F N E
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 3 of 2010
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed.
- Judges
- JV Juma
- Legal Topics
- Divorce, Adultery, Cruelty, Irretrievable Breakdown, Civil Marriage, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N S J
Petitioner
F N E
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's conduct amounted to cruelty towards the petitioner.
- 2 Whether the respondent committed adultery during the subsistence of the marriage.
- 3 Whether the marriage has irretrievably broken down under the Marriage Act.
Ratio Decidendi
The court found that the respondent's conduct, including taunting the petitioner for not fathering a son and bearing children with another man during the marriage, constituted both cruelty and adultery. The parties had lived separately for approximately fifteen years, which the court deemed sufficient evidence of the irretrievable breakdown of the marriage. The court applied Section 66(2) of the Marriage Act No. 4 of 2014, which allows dissolution of a civil marriage on grounds of adultery, cruelty, or irretrievable breakdown. As the petitioner's evidence was unchallenged, the court accepted it as proof and granted the petition for divorce.
Court Disposition
Petition for divorce allowed.
Orders
- Decree nisi to issue and to be made absolute within three months of the judgment date.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 3 OF 2010
N S J………………………..….………PETITIONER
VERSUS
F N E……….……………….........…RESPONDENT
JUDGMENT
The petitioner N S Jfiled this petition dated 29th June, 2010 seeking the dissolution of his marriage to the respondent F N E. The respondent was duly served with both the petition as well as a summons to appear but she filed no response. The matter therefore proceeded as an undefended cause.
The petitioner testified before me on 25th March, 2014. He stated that he met and married the respondent on 25th June, 1994. At the time the couple both lived in the United Kingdom. A copy of the marriage certificate Pexb1 provides proof of the fact of this marriage. The couple began their married life in the United Kingdom where they lived until 1997 when they moved to Kenya. Their union was blessed with three daughters namely
S J - 24 years
J J - 23 years
A J - 18 years
In 1998 the couple separated due to disagreements. They reconciled briefly but then separated permanently in 1999. The petitioner states that the respondent would constantly taunt him for failing to give her a son. After their separation in 1999 the respondent proceeded to bear four (4) more children with a different man. As stated earlier the respondent filed no reply to the petition. As such the petitioner’s evidence remains unchallenged and uncontroverted. For the respondent to taunt the petitioner about his failure to sire a son amounts to cruelty. The fact that the respondent proceeded to bear children with another man during the subsistence of her marriage to the petitioner is clear evidence of adultery. The new Marriage Act No. 4 of 2014 at part IV section 24 provides that a civil marriage is one which has been celebrated by the Registrar. The parties in this case contracted a civil marriage. Section 66(2) of the same Act provides:
“A party to a marriage under part IV may only petition the court for the separation of the parties or the dissolution of the marriage on the following grounds
Adultery by the other spouse.
Cruelty by the other spouse.
………………………….
…………………………..
The irretrievable breakdown of the marriage.”
As discussed earlier, I have already found that there exists proof of both cruelty and adultery on the part of the respondent. The couple have lived separately since 1999 a period of about fifteen (15) years. This is proof that the marriage has irretrievably broken down. I therefore allow this petition for divorce. Decree nisi to issue to be made absolute within three (3) months of today’s date. No order on costs.
Dated and delivered in Mombasa this 9th day of June, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Kole for Petitioner
Court Clerk Mutisya