[2006] KEHC 801 (KLR)
The court found that the petitioner’s testimony regarding cruelty and the irretrievable breakdown of the marriage was uncontroverted and credible. The prior decree of judicial separation, granted on grounds of cruelty, was deemed sufficient proof of those grounds under Section 7 of the Matrimonial Causes Act. The...
Source-derived case information.
- Citation
- [2006] KEHC 801 (KLR)
- Parties
- Petitioner: S.K.K; Respondent: M.M.S
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 10 November 2006
- Case Number
- Divorce Cause 96 of 2005
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed; marriage dissolved.
- Legal Topics
- Divorce, Judicial Separation, Cruelty, Irretrievable Breakdown, Maintenance, Child Custody
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
S.K.K
Petitioner
M.M.S
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent has irretrievably broken down.
- 2 Whether acts of cruelty by the respondent towards the petitioner have been sufficiently proved.
- 3 Whether the decree of judicial separation is sufficient proof of grounds for dissolution of marriage.
Ratio Decidendi
The court found that the petitioner’s testimony regarding cruelty and the irretrievable breakdown of the marriage was uncontroverted and credible. The prior decree of judicial separation, granted on grounds of cruelty, was deemed sufficient proof of those grounds under Section 7 of the Matrimonial Causes Act. The parties had not resumed cohabitation since the decree, and the marriage was found to be irretrievably broken. Accordingly, the court ordered the dissolution of the marriage and directed that the decree nisi be made absolute within 60 days.
Court Disposition
Petition allowed; marriage dissolved.
Orders
- The marriage solemnized between the parties is dissolved.
- The decree nisi shall be made absolute within 60 days from the date hereof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 96 of 2005
S.K.K …………………………… PETITIONER
VERSUS
M.M.S …………………..……. RESPONDENT
JUDGMENT
The Petitioner in this cause testified in presence of Mr. Abele the learned counsel who held brief for the counsel of the Respondent. No questions were asked by the said counsel after the Petitioner finished her testimony. Thus her testimony remained uncontroverted. I also have keenly observed the Petitioner during her testimony and I do not have any reasons to find that she was not telling the truth.
She testified that herself and the Respondent started cohabiting since 1986 and their relation was formalized in solemnization of marriage on 5th October, 2001. She produced the certified copy of the Marriage Certificate No [particulars withheld]
They have four children namely
1. K.L born on 15. 6.87
2. A.S born on 17. 12. 91.
3. J.M born on 27. 4.94
4. G.S born on 15. 4.96
The Petitioner had filed a Separation and Maintenance Cause being Cause No. [PARTICULARS WITHHELD] on the grounds of cruelty which she has specified in her petition and has given evidence thereon.
She has also testified that after the decree of separation was granted in 2002 she has not lived with the Respondent and that they are separated since March, 2002.
She also stated that her marriage with the Respondent has been irretrievably broken and that she has not colluded with the Respondent in presenting or prosecuting this petition.
Under Section 7 of the Matrimonial Causes Act (Cap. 152 Laws of Kenya), the decree of judicial separation is the sufficient proof of the grounds on which the same was granted. Thus I can easily find that acts of cruelty averred by the Petitioner are sufficiently proved by the decree of Judicial Separation and also find that the parties have not resumed cohabitation.
In the premises, I do order that the marriage in fact solemnized between the parties be dissolved.
The decree nisi be made absolute within 60 days from the date hereof.
Dated and signed at Nairobi this 10th day of November 2006
K.H. RAWAL
JUDGE4
10. 11. 2006