[2007] KEHC 2165 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

Divorce Cause 16 of 2002

V N S....... ………….…….………………PETITIONER

VERSUS

G w/o V N S...................……..…..…1st RESPONDENT

M H P D.......................………..…2ND RESPONDENT

J U D G M E N T

In a petition dated 26th June 2002, V N S, the Petitioner herein, sought to have the marriage between him and G S, the 1st Respondent herein, dissolved. When the petition came up for hearing, both the Petitioner and the Respondent testified without calling for the evidence of independent witnesses.

V S told this court that his marriage with the Respondent solemnized on 28th August 1994 has irretrievably broken down beyond salvage. He accused the Respondent of being cruel to him in that she always went out for parties without seeking his express permission. He also blamed her for the collapse of the marriage in that she denied him conjugal rights whenever he required. He told this court that the 1st Respondent moved out of the matrimonial home since the year 2000. He further told this court that the marriage cannot be salvaged and for those reasons the Petitioner urged this court to free him by dissolving the marriage.

The 1st Respondent on the other hand also seeks to have the marriage dissolved on the ground that it has failed to work despite several attempts to have it salvaged. She did not want to go into the details as to why the marriage has failed to subsist. She only said that her differences with the Petitioner has made the marriage break beyond salvage.

I have considered the evidence tendered by the Petitioner and the 1st Respondent in support of the dissolution of the marriage. I have considered the Petitioner’s assertion that the 1st Respondent has been cruel to him in that she freely went out of the Matrimonial home to attend business meetings and parties without his consent. He has also claimed that the 1st Respondent deserted the matrimonial home since the year 2000 and has never made any attempts to come back. These allegations were made in the petition and repeated in the oral evidence presented by the Petitioner. The 1st Respondent did not want to cross-examine the Petitioner on these serious allegations. I note that the 1st Respondent attempted to deny the aforesaid allegations in her answer to the Petition. She did not however contest the oral evidence during the hearing of the divorce proceedings. She only told this court that the marriage has irretrievably broken down. The Petitioner too did not want to test this allegation by cross-examination. I know that the standard of proving a matrimonial offence is slightly higher than that required in civil cases. The truth of the matter is that the husband and the wife have found their marriage unfulfilling in all respects save for the piece of paper which was recorded. In other words the marriage has irretrievably broken down. The question is who is to blame? From the evidence tendered, I am satisfied that the 1st Respondent is to blame for the breakdown of the marriage. I find that her conduct of deserting the matrimonial and attending to parties and business meetings without the prior consent of her husband amounts to being cruel to the Petitioner. Consequently for the above reasons I order for the marriage between the Petitioner and the 1st Respondent to be dissolved. A decree nisi to issue and confirmed within a period of 2 months. Since no party asked for costs I will direct that each party do meet his or her costs.

Dated and delivered at Mombasa this 29th day of June 2007.

J.K. SERGON

J U D G E

In open court in the presence of Mr. Obura for the Petitioner and

Mr. Kaburu for Respondent.