[2014] KEHC 4530 (KLR)
The court found that the respondent's conduct, including physical aggression, denial of conjugal rights, and abandonment of the matrimonial home since December 2005, constituted both cruelty and willful desertion. The respondent's failure to respond to the petition left the petitioner's evidence unchallenged. The...
Source-derived case information.
- Citation
- [2014] KEHC 4530 (KLR)
- Parties
- Petitioner: O O; Respondent: W A O
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Judgment Date
- 17 June 2014
- Case Number
- Divorce Cause 17 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce granted. Decree nisi to issue, to be made absolute within three months. No order as to costs.
- Judges
- JV Juma
- Legal Topics
- Divorce, Cruelty, Desertion, Matrimonial Breakdown
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
O O
Petitioner
W A O
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's conduct amounted to cruelty towards the petitioner.
- 2 Whether the respondent willfully deserted the petitioner and their matrimonial home.
- 3 Whether the marriage has irretrievably broken down and should be dissolved.
Ratio Decidendi
The court found that the respondent's conduct, including physical aggression, denial of conjugal rights, and abandonment of the matrimonial home since December 2005, constituted both cruelty and willful desertion. The respondent's failure to respond to the petition left the petitioner's evidence unchallenged. The court was satisfied that the grounds for divorce had been established, the marriage had irretrievably broken down, and there was no prospect of reconciliation. Accordingly, the court granted the orders for divorce as prayed.
Court Disposition
Petition for divorce granted. Decree nisi to issue, to be made absolute within three months. No order as to costs.
Orders
- Decree nisi for dissolution of marriage to issue.
- Decree nisi to be made absolute within three months from the date of judgment.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 17 OF 2013
O O…………………..……………..PETITIONER
VERSUS
W A O………….………….........…RESPONDENT
JUDGMENT
The petitioner O Ofiled in court this petition dated 19th March, 2013 seeking the dissolution of his marriage to the respondent. The respondent W A O was duly served with both the petition and summons to enter appearance. She failed to enter appearance and failed to file any reply to the petition. The matter therefore proceeded as an undefended cause.
The petitioner testified before the court on 31st March, 2014. He told the court that he and the respondent got married on 23rd December, 2004 at the Registrar’s Office in Mombasa. The copy of their marriage certificate serial number [Particulars withheld] Pexb 1 provides proof of the marriage. Their union was blessed with one child a son M A O born on 24th June, 2002. The said child is now about 13 years old. Following their marriage the couple set up home as man and wife in Mombasa. The petitioner describes their union as ‘short but stormy’. He states that the respondent was aggressive and often fought with him even in his office. He claims that on one occasion the respondent hit him on the back of the head with a bottle which assault he reported at Port Police station. The petitioner further claims that the respondent practiced witchcraft and she placed clothes, wrappings and pieces of paper bearing the names of his family members in their bed-room. The petitioner’s mother advised him to burn those items. The respondent denied him conjugal rights and sexual relations between them eventually ceased. In December, 2005 the respondent took all the household items and ran away leaving her son behind. The couple have never cohabited since that time.
As stated earlier the respondent was personally served with the petition but opted not to make any reply. I have no doubt that she was fully aware of these proceedings. The evidence of the petitioner remains unchallenged and/or uncontroverted. I have no reason to doubt what he has stated. The actions of the respondent do amount to cruelty. Her action in abandoning the matrimonial home and remaining away since December, 2005 amounts to willful desertion. The couple have not lived together for the past 8 ½ years. The marriage has clearly broken down. I am satisfied that the ground of desertion and cruelty has been proved. The respondent has not only abandoned her husband but has abandoned her son as well. I grant the orders for divorce as prayed. 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 17th day of June, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Mbuya for Petitioner
Court Clerk Mutisya