[2012] KEHC 1995 (KLR)
The court found that although the Petitioner physically left the matrimonial home, it was the Respondent's threats to his life that compelled him to do so. This conduct by the Respondent constituted constructive desertion under Kenyan matrimonial law. The Respondent's failure to appear or contest the petition left...
Source-derived case information.
- Citation
- [2012] KEHC 1995 (KLR)
- Parties
- Petitioner: PJR; Respondent: RJJW
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 183 of 2011
- Procedural Posture
- Divorce Petition / Final Judgment
- Outcome
- Petition allowed. Marriage dissolved. Joint custody granted. Each party to bear own costs.
- Judges
- CM Njagi
- Legal Topics
- Divorce, Constructive Desertion, Custody of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PJR
Petitioner
RJJW
Respondent
Procedural Posture
Divorce Petition / Final Judgment
Legal Issues
- 1 Whether the Respondent is guilty of constructive desertion warranting dissolution of the marriage.
- 2 Whether the Petitioner is entitled to joint custody of the child of the marriage.
- 3 Whether the Petitioner is entitled to costs.
Ratio Decidendi
The court found that although the Petitioner physically left the matrimonial home, it was the Respondent's threats to his life that compelled him to do so. This conduct by the Respondent constituted constructive desertion under Kenyan matrimonial law. The Respondent's failure to appear or contest the petition left the Petitioner's evidence unchallenged. The court was satisfied that the Petitioner had proved the matrimonial offence of constructive desertion on a balance of probabilities, entitling him to a decree of divorce. The court also found it appropriate to grant joint custody of the child of the marriage, and ordered that each party bear their own costs.
Court Disposition
Petition allowed. Marriage dissolved. Joint custody granted. Each party to bear own costs.
Orders
- The marriage solemnized at the Registrar’s Office, Nairobi, on 1st August, 2003 between the Petitioner and the Respondent is hereby dissolved.
- Decree nisi to issue.
Full Case Text
Judgment text and source record
21 paragraphs
PJR ……..................…..........................................………….. PETITIONER
VERSUS
RJJW ………...............................................................……. RESPONDENT
JUDGMENT
By a Petition for divorce dated 6th December, 2011 and filed in Court on 8th December, 2011, the Petitioner prays for orders that-
(a)The marriage between the Petitioner and the Respondent be dissolved
(b)The Petitioner and Respondent be granted joint custody of the issue of the marriage
(c)The costs of this petition be provided for.
On 31st January, 2012, the Respondent was served with a copy of the Petition and Notice to Appear. She duly acknowledged service on the same date, and the acknowledgement was filed in court on 13th March, 2012. However, she did not enter appearance. Upon her default to do so, the court proceeded to hear the petition her absence notwithstanding.
The Petitioner gave sworn testimony and told the court that he married the Respondent on 1st August, 2003. He produced a copy of their marriage certificate as evidence of the marriage. The couple cohabited in [PARTICULARS WITHHELD], K[....] Road, Nairobi, within the Republic of Kenya. Their union was blessed with one issue, a son, born on 22nd November, 2006.
The Petitioner’s ground for divorce is that since 5th September, 2008, the Respondent constructively deserted the Petitioner. The particulars of the desertion were that on that fateful date, at 10pm, the Respondent returned to the matrimonial home and told the Petitioner to leave otherwise she would kill him. Fearing physical assault, the Petitioner left the matrimonial home, and the Petitioner and the Respondent have been living separate lives since that date.
A spouse who leaves the matrimonial home for more than three years with the intention of never coming back is guilty of the matrimonial offence of desertion which is a ground for divorce. Although in the instant case it was the Petitioner who actually left the matrimonial home, it was not his wish to leave. Instead, it was the Respondent who forced him to leave by threatening to kill him if he did not do so. He therefore left in order to save his life, thereby rendering the Respondent guilty of constructive desertion.
Since the Respondent did not enter an appearance, it means that she did not care to defend herself, and most probably she had nothing to say in self defence. Given that the Petitioner’s evidence was uncontroverted, I find that he has proved the matrimonial offence of constructive desertion and that he is entitled to an order for divorce as prayed. I accordingly make the following orders-
(a)The marriage solemnized at the Registrar’s Office, Nairobi, on 1st August, 2003 between the Petitioner and the Respondent herein is hereby dissolved.
(b)Decree nisi to issue.
(c)Decree nisi to be made absolute after 14 days upon application by either of the parties
(d)The Petitioner and the Respondent are hereby granted joint custody of the issue of the marriage.
(e)Each party to bear its own costs.
DATEDand DELIVERED at NAIROBI this 10th day of July, 2012.
L. NJAGI
JUDGE