[2002] KEHC 304 (KLR)
The court found that the petitioner had proved, on a balance of probabilities, that the respondent deserted her and failed to resume cohabitation or provide adequate support. The respondent did not contest the petition or the evidence presented. The court accepted the petitioner's testimony as truthful and...
Source-derived case information.
- Citation
- [2002] KEHC 304 (KLR)
- Parties
- Petitioner: S.D; Respondent: A.J.H.D
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 39 of 2002
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage dissolved. Custody of children awarded to petitioner. Maintenance and costs as per consent order.
- Legal Topics
- Divorce, Desertion, Custody of Children, Maintenance, Matrimonial Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S.D
Petitioner
A.J.H.D
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petitioner has proved grounds for dissolution of marriage based on desertion.
- 2 Whether the petitioner is entitled to custody of the children of the marriage.
- 3 Whether the settlement on maintenance and costs should be endorsed by the court.
Ratio Decidendi
The court found that the petitioner had proved, on a balance of probabilities, that the respondent deserted her and failed to resume cohabitation or provide adequate support. The respondent did not contest the petition or the evidence presented. The court accepted the petitioner's testimony as truthful and sufficient to establish the ground of desertion for dissolution of marriage. The court further endorsed the parties' consent settlement on maintenance, custody, and costs, awarding custody of the children to the petitioner with fair access to the respondent, and ordering the respondent to pay the costs of the divorce. The decree nisi for divorce was issued immediately, to be made...
Court Disposition
Petition allowed. Marriage dissolved. Custody of children awarded to petitioner. Maintenance and costs as per consent order.
Orders
- The marriage between the petitioner and respondent is dissolved.
- Custody of the two children is awarded to the petitioner with fair access to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
DIVORCE CAUSE NO. 39 OF 2002
S.D ……………………….. PETITIONER
VERSUS
A.J.H.D...................... …… RESPONDENT
J U D G E M E N T
The petitioner, S.D, sought an order of this court to dissolve her marriage to A.J.H.D, on grounds of desertion.
The petition was served on the respondent personally, and he acknowledged service, but thereafter filed no answer to the petition. The Registrar then gave a certificate certifying the pleadings to be in order, and directing the cause to proceed as an undefended cause.
In court during the hearing of the petition, the petitioner testified that she got married to the respondent on 21st March, 1992 at the Windsor Golf and Country Club. This was a marriage under the Marriage Act, Cap 150, Laws of Kenya.
Immediately upon marriage the couple lived and cohabited in Karen, then Langata, and finally, the petitioner moved into her own home in Langata, Nairobi. The couple has 2 children, Sienna Dennis, born on 18th July 1993 and O.J.D born on 15th September 1994.
The petitioner confirmed that there have been no previous proceedings between her and the respondent.
She lamented that the respondent went back to Britain in 1995 and did not return until after 3 years in 1998. She conceded that during the period he was away, he sent money for school fees for the children but not other support, financial or otherwise.
The respondent returned to Kenya in 1998, but the couple did not resume cohabitation because the Respondent had somebody else (woman) in his life.
The petitioner stated that she was forced to fend for herself as the respondent left her alone with the children. She eventually bought a house of her own and moved into it with the children leaving the matrimonial house. The respondent has not lived with them in their new residence since they moved in.
The petitioner explained the deal of settlement that she and her husband had got into concerning maintenance for herself and the children of the marriage, medical insurance and school fees. This settlement was reached by consent and I proceed to endorse it as part of this judgement. The petitioner denied having condoned or connived at the respondent’s Act of desertion. She prayed for the dissolution of her marriage to the respondent.
As the respondent did not file an answer or oppose the petitioner’s evidence adduced in court, I find that the petitioner’s evidence is true and I believe it. From that evidence, I find that the petitioner has proved her case on a balance of probabilities, and I proceed to grant an order dissolving her marriage to the respondent.
I also award the petitioner the custody of the 2 children of the marriage with “fair access” to the respondent, as agreed in the consent order. Finally, I order the husband to pay the costs of the divorce as was agreed in the consent order, which I have adopted and is now part of the judgement herein.
The decree nisi for divorce will issue straight away today. The same will be made absolute after a period of one month from today.
Dated at Nairobi this 11th day of December, 2002.
JOYCE ALUOCH
HIGH COURT JUDGE