[2018] KEHC 6234 (KLR)
The court found that the petitioner had proved the grounds of adultery and desertion against the respondent, and that the marriage had irretrievably broken down as the parties had been separated for approximately sixteen years. The respondent did not contest the petition or the evidence presented. The court was...
Source-derived case information.
- Citation
- [2018] KEHC 6234 (KLR)
- Parties
- Petitioner: W K R; Respondent: M C W
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 12 of 2014
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved; custody granted to petitioner; costs to petitioner
- Judges
- AG Ndung'u
- Legal Topics
- Divorce, Custody of Children, Adultery, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
W K R
Petitioner
M C W
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent has irretrievably broken down.
- 2 Whether the petitioner has proved grounds of adultery and desertion against the respondent.
- 3 Whether the petitioner is entitled to custody of the children of the marriage.
Ratio Decidendi
The court found that the petitioner had proved the grounds of adultery and desertion against the respondent, and that the marriage had irretrievably broken down as the parties had been separated for approximately sixteen years. The respondent did not contest the petition or the evidence presented. The court was satisfied that dissolution of the marriage was the only viable solution. The court also found that the petitioner had been solely responsible for the children and that the prayer for custody was unchallenged, thus granting custody to the petitioner. Costs were awarded to the petitioner as the successful party.
Court Disposition
petition allowed; marriage dissolved; custody granted to petitioner; costs to petitioner
Orders
- A decree nisi is to issue dissolving the marriage between the petitioner and respondent.
- Custody of the children R K and S J is granted to the petitioner.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
DIVORCE CAUSE NUMBER 12 OF 2014
W K R.................................................................PETITIONER
VERSUS
M C W................................................................RESPONDENT
JUDGMENT
1. By way of a petition, W K R (Petitioner) seeks orders;
(a) A decree nisi and a decree absolute do issue nullifying the marriage between the Petitioner and the Respondent.
(b) Custody of the children be granted to the Petitioner.
(c) The Respondent be condemned to pay the costs of this suit.
(d) Any other relief this Honourable Court may deem just and fit to grant.
2. The petition is premised on grounds adultery and desertion as particularized at paragraph 4 of the petition namely;
(a) Having an affair with D K.
(b) Running away from the matrimonial home for long periods of time on various occasions.
(c) Neglecting children at their tender years.
(d) Causing the Petitioner mental anguish.
(e) Threatening to kill the petitioner by poisoning him.
(f) Leaving the matrimonial home without notice since the year 2002.
(g) Writing letters to other men such as L S.
3. Despite clear evidence of service, there was no response to the petition and matter proceeded exparte.
4. In evidence, the Petitioner produced a marriage certificate confirming the existence of the marriage. He stated that they were blessed with 2 children. The 2 separated in 2002 and have not lived together since. Their differences, he stated, are irreconcilable.
5. He stated that he would come home and would not find the Respondent. He established that she was living with one D K. He actually reported the matter to the father of D K. He stated he has been taking care of the children. He sought divorce and custody of the children.
6. I have had occasion to consider the petition and the evidence adduced. The Petitioner's evidence is not controverted. The separation of the parties to-date is about 16 years. The evidence of adultery and desertion is not challenged.
7. I am satisfied that the marriage herein has irretrievably broken down and its dissolution is the only route beneficial to the parties.
8. I have also noted that the Petitioner has been solely responsible for the upkeep of the issues of the marriage. The prayer for custody is not challenged. The same should also be allowed. Consequently, I allow the petition herein. The marriage between the Petitioner and Respondent is hereby dissolved. A decree nisi is to issue. The custody of the issues of the marriage namely R K and S J is given to the Petitioner. The Petitioner shall have costs of the petition.
Dated and Signed at Nakuru this 11th day of June, 2018.
A. K. NDUNG'U
JUDGE