[2017] KEHC 886 (KLR)
The court found that both parties had sought dissolution of the marriage and had been separated since 2008, with no resumption of cohabitation and ongoing disputes between them. The court held that, under Section 66(2) of the Marriage Act, 2014, it is sufficient to demonstrate that the marriage has irretrievably...
Source-derived case information.
- Citation
- [2017] KEHC 886 (KLR)
- Parties
- Petitioner: W K; Respondent: B A A
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 8 of 2010
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Decree of divorce granted; marriage dissolved.
- Judges
- M Thande
- Legal Topics
- Divorce, Irretrievable Breakdown of Marriage, Civil Marriage Dissolution
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
W K
Petitioner
B A A
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent has irretrievably broken down.
- 2 Whether the statutory grounds for dissolution of a civil marriage under the Marriage Act, 2014 have been met.
Ratio Decidendi
The court found that both parties had sought dissolution of the marriage and had been separated since 2008, with no resumption of cohabitation and ongoing disputes between them. The court held that, under Section 66(2) of the Marriage Act, 2014, it is sufficient to demonstrate that the marriage has irretrievably broken down, without the need to prove a matrimonial offence. The evidence and pleadings satisfied the court that the marriage had indeed irretrievably broken down, warranting the grant of a decree of divorce.
Court Disposition
Decree of divorce granted; marriage dissolved.
Orders
- A decree nisi is issued dissolving the marriage between the petitioner and respondent solemnised at the Registrar’s office in Mombasa on 10.10.80.
- Decree nisi to be made absolute within 1 month.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
DIVORCE CAUSE NO. 8 OF 2010
W K....................................................... PETITIONER
VERSUS
B A A.…………….…...…………..…...RESPONDENT
JUDGEMENT
1. This is an old matter. The Petitioner W K filed this Petition dated 19. 10. 09 seeking the dissolution of her marriage to B A A, the Respondent. The Respondent having been duly served filed his Answer to Petition and Cross Petition dated 3. 6.10 in which he too sought the dissolution of the marriage.
2. The Petition was disposed of by way of vive voce evidence. The undisputed facts of the case are that the marriage of the parties herein was solemnised at the Registrar’s office in Mombasa on 10. 10. 80. The couple have 2 adult children. The Petitioner is a paediatrician while the Respondent is an engineer.
3. The Petitioner told the court that she married the Respondent in 1980 and they have 2 adult children who have families of their own. They started a family business and acquired some property together. Mistrust and suspicion set in that led to the end of the business. The parties are involved in both civil and criminal cases against each other. They separated in January 2008. There was an attempt in 2008 by the Petitioner’s elder brother to reconcile the parties but it did not bear fruit. Since they separated, the parties not resumed cohabitation. The marriage herein has irretrievably broken down and there is no hope of salvaging the same. The Petitioner prayed that the marriage be dissolved.
4. The Respondent did not attend Court for the hearing and his counsel who was present closed the case of the Respondent.
5. The grounds upon which a civil marriage such as the marriage herein may be dissolved are stipulated in the Marriage Act, 2014 at Section 66(2). These include:
(a) adultery by the other spouse;
(b) cruelty by the other spouse;
(c) exceptional depravity by the other spouse;
(d) desertion by the other spouse for at least three years; or
(e) the irretrievable breakdown of the marriage”
6. It is quite apparent that the marriage herein is no more. Both parties have in their pleadings sought the dissolution of the same. Since 2008 when they separated they have not resumed cohabitation. They are both involved in criminal and civil cases against each other. With the enactment of the Marriage Act 2014, the Court no longer requires parties to adduce evidence sufficient to prove the commission of a matrimonial offence by one spouse against the other. All that a party needs to do is satisfy the Court that the marriage has irretrievably broken down. This was well articulated by Odero, J. in C.W.L v H.N [2014] eKLR thus:
“Prior to the Marriage Act 2014, the court would have required either the petitioner or the respondent to adduce evidence sufficient to prove the commission of a matrimonial offence by one spouse against the other. However in the Marriage Act 2014 the situation is vastly different. All the court requires is proof that the marriage has irretrievably broken down.”
7. From the material before me and the testimony of the Petitioner, I am satisfied that the marriage herein has irretrievably broken down. In view of the foregoing, I do pronounce a decree of divorce and order that the marriage between the Petitioner and the Respondent solemnised at the Registrar’s office in Mombasa on 10. 10. 80 be and is hereby dissolved. Decree nisi to issue and the same to be made absolute within 1 month. Each party to bear own costs.
DATED, SIGNED and DELIVERED in MOMBASA this 1st day of December 2017
___________
M. THANDE
JUDGE
In the presence of: -
…………………………………………………………… for the Petitioner
……………………………………………………….. for the Respondent
……………………………………………………..…….. Court Assistant