[2009] KEHC 3773 (KLR)

[2009] KEHC 3773 (KLR)

The court found that the petitioner had provided unchallenged and uncontroverted evidence that the respondent deserted the matrimonial home in 1993 and that the parties had lived apart for 16 years. The petition for divorce was filed more than three years after the desertion, satisfying the statutory requirement. There was no evidence that the petitioner precipitated the desertion or that he was an accessory to or condoned the respondent's conduct. The respondent did not attend the hearing or contest the factual allegations. The court was satisfied that the marriage had irretrievably broken down and that the petitioner was entitled to a decree of divorce on the ground of desertion.

Citation
[2009] KEHC 3773 (KLR)
Parties
Applicant: S N K; Respondent: D W M
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
7 May 2009
Case Number
Divorce Cause 1 of 2003
Procedural Posture
Divorce Cause / Judgment
Outcome
Petition for divorce allowed; decree nisi to issue, to be made absolute within the statutory period; no order as to costs or custody.
Judges
MSA Makhandia
Legal Topics
Divorce, Desertion, Cruelty, Matrimonial Offences
Source Language
English
Family and Children Divorce Desertion Cruelty Matrimonial Offences

Case Brief

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Parties

S N K

Applicant

D W M

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the respondent deserted the petitioner for a continuous period of at least three years prior to the filing of the petition.
  2. 2 Whether the petitioner precipitated or was responsible for the alleged desertion.
  3. 3 Whether the marriage has irretrievably broken down, justifying dissolution.

Ratio Decidendi

The court found that the petitioner had provided unchallenged and uncontroverted evidence that the respondent deserted the matrimonial home in 1993 and that the parties had lived apart for 16 years. The petition for divorce was filed more than three years after the desertion, satisfying the statutory requirement. There was no evidence that the petitioner precipitated the desertion or that he was an accessory to or condoned the respondent's conduct. The respondent did not attend the hearing or contest the factual allegations. The court was satisfied that the marriage had irretrievably broken down and that the petitioner was entitled to a decree of divorce on the ground of desertion.

Court Disposition

Petition for divorce allowed; decree nisi to issue, to be made absolute within the statutory period; no order as to costs or custody.

Orders

  • A decree nisi for dissolution of marriage shall issue forthwith, to be made absolute within the statutory period.
  • There shall be no order as to costs.