[2009] KEHC 3007 (KLR)
The court found that both parties agreed their marriage had irretrievably broken down, with each party alleging adultery and desertion against the other. The judge held that, in such circumstances, it is unnecessary to analyze or prove the specific grounds for divorce, as the mutual consent and factual separation...
Source-derived case information.
- Citation
- [2009] KEHC 3007 (KLR)
- Parties
- Applicant: RAG; Respondent: GRNG
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 5 of 2006
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition and cross-petition allowed; marriage dissolved.
- Judges
- J Karanja
- Legal Topics
- Divorce, Irretrievable Breakdown of Marriage, Adultery, Cruelty, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RAG
Applicant
GRNG
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent has irretrievably broken down.
- 2 Whether grounds of cruelty, adultery, and desertion have been established for dissolution of marriage.
- 3 Whether it is necessary to prove grounds for divorce where both parties consent to dissolution.
Ratio Decidendi
The court found that both parties agreed their marriage had irretrievably broken down, with each party alleging adultery and desertion against the other. The judge held that, in such circumstances, it is unnecessary to analyze or prove the specific grounds for divorce, as the mutual consent and factual separation demonstrate the futility of continuing the marriage. The court emphasized the need for legal reform to allow for divorce by consent in such cases. As there were no young children or custody issues, and the distribution of marital property would be addressed separately, the court dissolved the marriage, allowing both parties to move on with their lives.
Court Disposition
Petition and cross-petition allowed; marriage dissolved.
Orders
- The marriage between the petitioner and the respondent is hereby dissolved.
- Each party will bear its own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Divorce Cause 5 of 2006
RAG……………………………………………..PETITIONER
VERSUS
GRNG……………………………..RESPONDENT
JUDGMENT
The Petitioner herein one RAG filed this divorce cause on 16/10/2006. She is seeking the dissolution of her marriage to G RNG her husband of about 38 years. She relies on the grounds of cruelty and adultery. She has particularized the incidents of cruelty under paragraph 5 of her petition. She also claims that the Respondent has deserted her since 24/3/2004 and lastly that he has committed adultery with one AN with whom he has fathered 3 children. It will be noted that the Respondent admitted his relationship to the said AN with who he referred to as his “unlawful wife.”According to the petitioner their marriage has irretrievably broken down and all attempts to reconcile have been unsuccessful. She therefore asks the court to dissolve the same. The distribution of the marital property will be dealt with later.
The Respondent filed an answer to the petition and also cross petitioned for a divorce vide his answer dated 24/11/2006. He also relies on the grounds of adultery – particulars of which he has particularized in paragraph 9 of his cross petition. He also claims that the petitioner has “actively committed adultery” but he did not name the persons she has purportedly committed adultery with. He also accuses her of desertion and concedes that their marriage has irretrievably broken down.
Both parties therefore have a common ground to the effect that their marriage has irretrievably broken down and that the same should therefore be dissolved. In cases such as this, my view and practice is that it is not necessary to analyse the gory details about who did what to whom. Indeed my very strong view is that where both parties concede that divorce is the only way out, then there is no need of proceeding to prove the grounds of divorce as required in our laws. The time has come when our laws pertaining to marriage should be amended to allow for divorces by consent so that where parties agree that they do not want to continue in their marriage for reasons that it has irretrievably broken down, then it is not necessary to go though the motions of calling evidence to prove the case. This should also apply in instances where a party files for divorce and the other party through duly served refuses to respond. In this case therefore, I see no need to analyse the evidence adduced by the parties or the need to apportion blame. The 2 parties have lived apart for several years. The Respondent already has another family and each of them should therefore be allowed to pursue their life paths away from each other. There are no young children here and so there are no issues of custody that arise out of this divorce. The issues of distribution of the marital property will come later. The fate of their marriage is already sealed. I therefore find and hold that the marriage between the petitioner and the Respondent herein has irretrievably broken down and neither party wants it salvaged. Accordingly, I will allow the petition and cross-petition and order:-
1. That the marriage between the petitioner and the Respondent be and is hereby dissolved.
2. That each party will bear its own costs.
3. That a Decree nisi to issue
4. That any party be at liberty to apply for the same to be made absolute after 6 months from this date.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 29th day of June 2009
In presence of:-Mr. Kahiga and Mr. Githinji for Mr. Chomba.
W. KARANJA
JUDGE