[2014] KEHC 361 (KLR)
The court found that the respondent deserted the matrimonial home after cohabiting for only 87 days in three years and exhibited cruelty towards the petitioner. The respondent failed to appear or contest the petition, leaving the petitioner's evidence unchallenged. The court determined that the marriage had...
Source-derived case information.
- Citation
- [2014] KEHC 361 (KLR)
- Parties
- Applicant: R O O; Respondent: J O I
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 4 of 2014
- Procedural Posture
- Divorce Petition / Judgment
- Outcome
- petition allowed; marriage dissolved
- Legal Topics
- Divorce, Matrimonial Breakdown, Desertion, Cruelty, Conjugal Rights, Church Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R O O
Applicant
J O I
Respondent
Procedural Posture
Divorce Petition / Judgment
Legal Issues
- 1 Whether the respondent deserted the matrimonial home, amounting to grounds for divorce.
- 2 Whether the respondent was cruel to the petitioner, justifying dissolution of marriage.
- 3 Whether the withdrawal of conjugal rights constitutes sufficient ground for divorce under Kenyan law.
Ratio Decidendi
The court found that the respondent deserted the matrimonial home after cohabiting for only 87 days in three years and exhibited cruelty towards the petitioner. The respondent failed to appear or contest the petition, leaving the petitioner's evidence unchallenged. The court determined that the marriage had irretrievably broken down and that the petitioner had not condoned or connived at the respondent's conduct. Consequently, the court allowed the petition and ordered the dissolution of the marriage, issuing a decree nisi with a decree absolute to follow after the statutory period.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and respondent solemnized on 8th July, 2012 is dissolved/terminated.
- Decree nisi to issue and decree absolute to follow after the statutory period of six months.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
DIVORCE CASE NO. 4 OF 2014
R O………………………………………………………….PETITIONER
VERSUS
J O I………………………………………………………….RESPONDENT
JUDGMENT.
This is a short judgment. The petitioner,R O O, filed this petitioner dated 30th January, 2014 against J O I, his lawful wife whom he married on18th July, 2012 in the Adventist church, at [particulars withheld] church in Kisii County.
The petitioner and the respondent have lived as husband and wife at Daraja Mbili estate from 8th July, 2012 to 4th October, when the respondent deserted the matrimonial home. There were issues of marriage between the petitioner and the respondent. The respondent two (2) children from without the marriage, with another man were not adopted by the petitioner.
The application is made on the following grounds:
Desertion
Cruelty
Withdrawal of conjugal rights.
The petitioner prays that this court to order that this marriage because of the above grounds, above, outlined be:
The marriage be terminated and/or dissolved.
Each party to pay its own costs.
PW1- the petitioner states that he was a widower when he married J O I. He is also a professional politician, a businessman and a farmer. Their marriage was a church marriage at particulars withheld] church on 8th July, 2012.
That after this marriage, the petitioner and the respondent, co-habited for collectively 2 months and 27 days in a span of (3) three years. The respondent left the matrimonial home on 4th October, 2012 and has never returned. The respondent says, according to the petitioner’s evidence, she cannot fit in the petitioner’s life style. She asked for divorce and the parents have returned part of the pride price- dowry, two cows.
The petitioner says the respondent exhibited cruelty to the petitioner by receiving numerous phone calls from people who were not related to her upto 11 o’clock at night. I realized these phone calls were from boyfriends. The respondent maintained her ………………..residence without my knowledge.
The counsel submitted that this is a fit case for the court to enter and grant the order sought as the marriage has irrevocably broken down.
The respondent was served with the petition and notice to appear but failed to appear, hence the petitioner’s evidence in chief goes unrebutted.
The court finds that the petitioner has not in any way been an access way to, or connived at and/or condoned the said desertion and cruelty here.
The court further finds that the respondent deserted her matrimonial home and bed, after co-habiting for a total of 87 days in three years. Therefore the court further finds that the said marriage has irrevocably broken down and must be terminated.
The petitioner sought and obtained leave of court on the 27th day of January, 2014, to file the petition before the expiry of three years. Therefore the petition dated 30th day of January, 2014 is hereby allowed and the marriage to the respondent solemnized on 8th July, 2012 is hereby dissolved/terminated. The decree nisi to issue and decree absolute to follow after the statutory period of six months.
It is so ordered.
Dated and Delivered at Kisii this 21st day of November, 2014
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Bunde holding brief for Mariari for the petitioner.
…………………………………for the respondent
Edwin Mongare Court Clerk.