[2007] KEHC 289 (KLR)

[2007] KEHC 289 (KLR)

The court found that the petitioner failed to meet the statutory three-year threshold for desertion, as only two years had elapsed between the respondent's departure and the filing of the petition. However, the court held that the respondent's conduct—leaving the matrimonial home and relocating to Botswana with the only child without the petitioner's consent or communication—constituted cruelty of a degree sufficient to justify dissolution of the marriage. The court accepted the petitioner's unchallenged evidence and concluded that the marriage had irretrievably broken down, warranting the grant of a decree nisi for divorce on the ground of cruelty.

Citation
[2007] KEHC 289 (KLR)
Parties
Petitioner: SM; Respondent: DWM alias DWMM
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
5 November 2007
Case Number
Divorce Cause 2 of 2006
Procedural Posture
Divorce Cause / Judgment
Outcome
Petition for divorce allowed on grounds of cruelty. Decree nisi to issue. No order as to costs.
Judges
MSA Makhandia
Legal Topics
Divorce, Cruelty, Desertion, Irretrievable Breakdown, Custody, Matrimonial Relations
Source Language
English
Family and Children Divorce Cruelty Desertion Irretrievable Breakdown Custody Matrimonial Relations

Case Brief

Summary, issues, holding and outcome

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Parties

SM

Petitioner

DWM alias DWMM

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the respondent deserted the petitioner for a period sufficient to warrant dissolution of marriage under the law.
  2. 2 Whether the respondent was cruel to the petitioner, justifying dissolution of marriage on grounds of cruelty.

Ratio Decidendi

The court found that the petitioner failed to meet the statutory three-year threshold for desertion, as only two years had elapsed between the respondent's departure and the filing of the petition. However, the court held that the respondent's conduct—leaving the matrimonial home and relocating to Botswana with the only child without the petitioner's consent or communication—constituted cruelty of a degree sufficient to justify dissolution of the marriage. The court accepted the petitioner's unchallenged evidence and concluded that the marriage had irretrievably broken down, warranting the grant of a decree nisi for divorce on the ground of cruelty.

Court Disposition

Petition for divorce allowed on grounds of cruelty. Decree nisi to issue. No order as to costs.

Orders

  • A decree nisi for dissolution of marriage shall issue forthwith to be made absolute in the normal manner.
  • There shall be no order as to costs.