[2009] KEHC 1178 (KLR)
The court found that the petitioner had proved, on a balance of probability, that the respondent deserted him for at least three years prior to the petition and treated him with cruelty. The evidence was uncontroverted as the respondent did not oppose the petition. The court was satisfied that the petitioner neither...
Source-derived case information.
- Citation
- [2009] KEHC 1178 (KLR)
- Parties
- Petitioner: R.K.M; Respondent: L.M.M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 68 of 2008
- Procedural Posture
- Divorce Petition / Judgment
- Outcome
- Petition allowed. Marriage dissolved.
- Judges
- JW Gacheche
- Legal Topics
- Divorce, Matrimonial Causes, Desertion, Cruelty, Irretrievable Breakdown, Decree Nisi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
R.K.M
Petitioner
L.M.M
Respondent
Procedural Posture
Divorce Petition / Judgment
Legal Issues
- 1 Whether the respondent deserted the petitioner without cause for at least three years preceding the petition.
- 2 Whether the respondent treated the petitioner with cruelty since the celebration of the marriage.
- 3 Whether the petitioner condoned or colluded in the respondent's actions.
Ratio Decidendi
The court found that the petitioner had proved, on a balance of probability, that the respondent deserted him for at least three years prior to the petition and treated him with cruelty. The evidence was uncontroverted as the respondent did not oppose the petition. The court was satisfied that the petitioner neither condoned nor colluded in the respondent's actions. Accordingly, the court granted an order for the dissolution of the marriage under the Matrimonial Causes Act, issuing a decree nisi and allowing the petitioner to apply for the decree absolute after three months.
Court Disposition
Petition allowed. Marriage dissolved.
Orders
- A decree nisi shall issue forthwith dissolving the marriage between the petitioner and the respondent.
- The petitioner shall be at liberty to apply for the decree absolute after three months.
Full Case Text
Judgment text and source record
22 paragraphs
R.K.M……………………………. ………………………………….. PETITIONER
versus
L.M.M………………….. …………………………………………. RESPONDENT
JUDGMENT
R.K.M who is the petitioner herein seeks an order for the dissolution of his marriage to L.M.M (‘the respondent’), whom he married at a civil ceremony Attorney General Chambers in Nairobi on 2/3/2005. The two have one who was born on 21/6/2003.
R who bases his petition on the grounds of desertion and cruelty, gave evidence to the effect that the respondent started treating him with cruelty soon after their marriage, and after which she left the matrimonial home in May 2005; that his efforts to reconcile with her have been in vain, and that she has refused to go back to their home. In his opinion, their marriage has broken down irretrievably.
In a matter where the petitioner alleges desertion, the court is guided by section 8 (1) (b) and (c) of the Matrimonial Causes Act wherein it is provided that:
“A petition for divorce may be presented to the court either by the husband or the wife on the ground that the respondent –
(a) …………
(b)has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or
(c)has since the celebration of the marriage treated the petitioner with cruelty; ……..”
I have considered the pleadings herein as well as the evidence before me and it is clear that the respondent treated the petitioner with cruelty, as a result of which he feels devastated, has lost his dignity at his work place and has suffered stress. Both work for the United Nations in Nairobi. There is also ample evidence that the respondent deserted the petitioner in May 2005, which was three years before he commenced this action.
The respondent did not oppose the petition at all and therefore the petitioner’s evidence remains uncontroverted.
Based on the above, and also on the fact that the petitioner has made it clear that he never condoned the respondent’s actions and neither did he collude with her to bring this cause, I find that he has proved his case on a balance of probability. I do grant him an order to dissolve his marriage to L.M.M.
A decree nisi shall issue forthwith. He shall be at liberty to apply after 3 months.
He shall otherwise bear the costs of this petition.
Dated and delivered at Nairobi this 18th day of June 2009.
JEANNE GACHECHE
Judge
Delivered in the presence of:
For the petitioner –
For the respondent -