[2015] KEHC 5221 (KLR)
The court found that the Respondent deserted the Petitioner and their child in 2011 and has not returned or provided any support since then. The Respondent was served but chose not to defend the petition. The evidence of the Petitioner was uncontroverted. The court held that the marriage had irretrievably broken...
Source-derived case information.
- Citation
- [2015] KEHC 5221 (KLR)
- Parties
- Applicant: R S M; Respondent: P H O
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 9 of 2014
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved; custody granted to petitioner; maintenance and costs denied
- Judges
- SJ Chitembwe
- Legal Topics
- Divorce, Child Custody, Desertion, Irretrievable Breakdown, Maintenance, Matrimonial Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R S M
Applicant
P H O
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and Respondent has irretrievably broken down.
- 2 Whether the Petitioner is entitled to dissolution of marriage on grounds of desertion and cruelty.
- 3 Whether the Petitioner should be granted custody of the child of the marriage.
Ratio Decidendi
The court found that the Respondent deserted the Petitioner and their child in 2011 and has not returned or provided any support since then. The Respondent was served but chose not to defend the petition. The evidence of the Petitioner was uncontroverted. The court held that the marriage had irretrievably broken down due to desertion by the Respondent. The Petitioner proved her case for dissolution of marriage. The court also found that the Petitioner should have custody of the only child of the marriage, as the Respondent has shown no interest or involvement. However, the court declined to grant maintenance and costs, noting that the Respondent is not working and unable to provide...
Court Disposition
petition allowed; marriage dissolved; custody granted to petitioner; maintenance and costs denied
Orders
- The marriage between the Petitioner and Respondent is dissolved on grounds of desertion.
- The Petitioner shall have custody of the only child of the marriage.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
DIVORCE CAUSE NO. 9 OF 2014
R S M .............…................PETITIONER
VERSUS
P H O ............................... …..RESPONDENT
JUDGEMENT
The Partitioner is seeking dissolution of her marriage with the Respondent. The petition was not defended. The Petitioner testified that they got married on 15th august, 2008. They were blessed with one child. She contends that the Respondent has decided not to work and since 2011 he has not returned home after travelling to Nairobi for a wedding. It is the Petitioner's evidence that the Respondent was working but simply decided to leave employment. She has tried to assist him to get employment but he has refused.
It is her evidence that since 2011 the Respondent has been away and has not provided her and the child with any support. She would like to have custody of the child. The Respondent was served personally but told her to proceed with her divorce case.
The main reasons being alleged for the divorce is dissection and cruelty. It is clear from the Petitioner's evidence that since 2011 the Respondent has not been living with the Petitioner. His whereabout is unknown. He was served but elected not to defend the Petition. There is no evidence to counter that of the Petitioner. From the circumstances of the case, I am satisfied that the marriage has irretrievably broken down. There is no hope for reconciliation. The parties got married in 2008 and in 2011 the Respondent walked out of the marriage. I do find that the Petitioner has proved her case. This marriage is hereby dissolved on the grounds of desertion. The Petitioner shall have custody of the only child of the marriage as prayed. The prayers for maintenance and costs are not granted as the Plaintiff's evidence is that the Respondent does not work. A Decree Nisi to issue.
Delivered and dated at Malindi this 18th day of March, 2015.
Said J. Chitembwe
JUDGE