[2017] KEHC 9129 (KLR)
The court found that the petitioner’s evidence of cruelty by the respondent was uncontroverted, as the respondent failed to attend court or challenge the testimony. The material before the court demonstrated that the marital relationship had irretrievably broken down, with the parties having lived apart since 2010....
Source-derived case information.
- Citation
- [2017] KEHC 9129 (KLR)
- Parties
- Petitioner: P M M; Respondent: J MM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 172 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- DN Musyoka
- Legal Topics
- Divorce, Cruelty, Adultery, Custody of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P M M
Petitioner
J MM
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent treated the petitioner with cruelty sufficient to warrant dissolution of marriage.
- 2 Whether the petitioner committed adultery and cruelty as alleged in the cross-petition.
- 3 Whether the marriage has irretrievably broken down.
Ratio Decidendi
The court found that the petitioner’s evidence of cruelty by the respondent was uncontroverted, as the respondent failed to attend court or challenge the testimony. The material before the court demonstrated that the marital relationship had irretrievably broken down, with the parties having lived apart since 2010. The court was satisfied that the respondent's conduct amounted to cruelty, justifying dissolution of the marriage. The cross-petition by the respondent was unsupported by evidence and thus not upheld. The court ordered the dissolution of the marriage and directed that issues concerning the minor child be addressed by the Children’s Court.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and the respondent, celebrated on 13th December 2007, is hereby dissolved.
- Decree nisi shall issue forthwith, to be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
DIVORCE CAUSE NO. 172 OF 2013
P M M………………………………,…………..PETITIONER
VERSUS
J MM…...…………………..…………..……...RESPONDENT
JUDGEMENT
1. Marriage was celebrated between the parties herein on 13th December 2007 at the Office of the Registrar of Marriages, Nairobi. A certificate of marriage serial number [Particulars Withheld] was issued to them in accordance with the Marriage Act, Cap 150, Laws of Kenya (now repealed). The parties cohabited thereafter at undisclosed locations. The couple was blessed with issue, three children, being J K (1989), S M (1994) and A L (2000).
2. It is pleaded that since the celebration of the marriage the respondent has treated the petitioner with cruelty. It is averred that the respondent is quarrelsome and of uncontrollable temper, has neglected the petitioner socially and emotionally, has showed contempt to the petitioner, has been violent and insulting to the petitioner, has denied him conjugal rights, among other particulars. He pleads that the marriage has been irreconcilable, and the two are incapable of living as husband and wife. He prays for dissolution of the marriage and custody of the minor child.
3. Upon being served, the respondent filed an answer to the petition and cross-petition. She denies all the allegations made against her in the petition. She cross-petitions for divorce on the grounds of adultery and cruelty. Although she has not named any one as a co-respondent, she accuses the petitioner of having affairs with women some of whom have been named in the petition. She alleged that the petitioner had assaulted her several times, abandoned her and her children to live with mistresses, among other claims. She would like the marriage dissolved on her grounds.
4. On 10th July 2014, the Deputy Registrar cleared the petition to proceed as defended. The Petitioner testified on 19th January 2017. His testimony gave vent to the allegations made in his petition. The respondent did not attend court eventhough she had been served. The petitioner’s testimony went uncontroverted.
5. From the material placed before me it is clear to my mind that the marital relationship between the petitioner and the respondent has totally broken down. I am satisfied that the respondent has been cruel to the petitioner. I have noted that cohabitation has been broken, and parties have been apart since 2010 when the petitioner moved out of the matrimonial home. The marriage no doubt has practically come to an end.
6. In the circumstances, I am moved to make the following final orders:-
(a) That the marriage between the petitioner and the respondent, celebrated on 13th December 2007, is hereby dissolved;
(b) That decree nisi shall issue forthwith, to be made absolute after thirty (30) days;
(c) That the matter of the minor child shall be addressed by the Children’s Court in a suit properly brought in that behalf; and
(d) That there shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 30TH DAY OF JUNE, 2017.
W. MUSYOKA
JUDGE