[2012] KEHC 2594 (KLR)
The court found that the petitioner had proved acts of cruelty and neglect by the respondent, including disowning the child, making unfounded accusations, forced sexual intercourse shortly before delivery, and failure to provide for the family. The respondent did not contest the petition or participate in the...
Source-derived case information.
- Citation
- [2012] KEHC 2594 (KLR)
- Parties
- Applicant: S W M; Respondent: J M M
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 4 of 2011
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved; custody awarded to petitioner; costs to petitioner.
- Judges
- SP Ouko
- Legal Topics
- Divorce, Cruelty, Adultery, Child Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
S W M
Applicant
J M M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage on the basis of cruelty and adultery.
- 2 Whether the petitioner is entitled to custody of the child.
- 3 Whether the respondent should bear the costs of the suit.
Ratio Decidendi
The court found that the petitioner had proved acts of cruelty and neglect by the respondent, including disowning the child, making unfounded accusations, forced sexual intercourse shortly before delivery, and failure to provide for the family. The respondent did not contest the petition or participate in the proceedings. The court was satisfied that the petitioner had not condoned or connived in the respondent's conduct and that the petition was not brought in collusion. The grounds for dissolution were established, and the best interests of the child required awarding custody to the petitioner. The marriage was therefore dissolved, custody granted to the petitioner, and costs awarded...
Court Disposition
petition allowed; marriage dissolved; custody awarded to petitioner; costs to petitioner.
Orders
- The marriage between the petitioner and the respondent contracted on 26th May, 2006 is dissolved.
- A decree nisi to issue forthwith.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Divorce Cause 4 of 2011
S W M…………………........………...PETITIONER
VERSUS
J M M……………………………....RESPONDENT
JUDGMENT
The petitioner and the respondent celebrated their marriage under the Marriage Act on 26th May, 2006. Thereafter they established their matrimonial home at Kaloleni Estate, Nakuru. They got one issue of the marriage. Since the celebration of their marriage, they have not lived a happy life. Last year, the petitioner brought this cause to petition for the dissolution of their marriage citing the grounds of cruelty and adultery, specifically that:
i)when they lost their first child through a miscarriage, the respondent accused the petitioner of procuring an abortion;
ii)the respondent has disowned their child insisting he is not her biological father;
iii)the respondent forced the petitioner into having sex with him a week before the former delivered which act caused her to experience premature labour pain and resulted in her undergoing caesarian section;
iv)the petitioner does not make provision for the petitioner and their daughter and would bring food home which he would eat alone;
v)the respondent has committed adultery with three ladies, P. W., S and their house help, J.
She has also prayed for the custody of the child.
The petition and the hearing notice were served on the respondent who did not respond and also elected not to participate in the hearing.
Apart from the grounds of adultery, the petitioner has proved that the respondent has been cruel to her. It was cruel for the respondent to disown his child without proof that he was not the biological father; to accuse the petitioner of prostitution; to forcibly have sex with the petitioner just a few days before she delivered and to neglect his family.
The petitioner has averred and I believe that in bringing this petition she has not connived or condoned the aforesaid cruelty or neglect. She has also deposed that the petition has not been brought in collusion with the respondent.
For the reason that the petitioner has proved cruelty and neglect and further that the respondent has not been taking care of their child, this petition succeeds. The marriage between the petitioner and the respondent contracted on 26th May, 2006 is hereby dissolved. There will be a decree nisiforthwith. A decree absolute to issue within six (6) months. The custody of the child is awarded to the petitioner.
The respondent to pay costs.
Dated, Signed and Delivered at Nakuru this 26th day of July, 2012.
W. OUKO
JUDGE