[2003] KEHC 248 (KLR)
The court found that the applicant had demonstrated exceptional hardship as required by Section 6(1) of the Matrimonial Causes Act. The evidence showed that the respondent deserted the applicant shortly after marriage, subjected her to mental anguish, and communicated unequivocally his intention to end the marriage....
Source-derived case information.
- Citation
- [2003] KEHC 248 (KLR)
- Parties
- Applicant: Winnie Wanjiru Muturi; Respondent: Rudolf Karl Diesch
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 19 of 2003
- Procedural Posture
- Divorce Cause / Ruling on Ex Parte Originating Summons for Leave to File Divorce Petition Before Three Years
- Outcome
- application granted
- Judges
- AGA Etyang
- Legal Topics
- Dissolution of Marriage, Exceptional Hardship, Matrimonial Causes Act, Desertion, Mental Cruelty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winnie Wanjiru Muturi
Applicant
Rudolf Karl Diesch
Respondent
Procedural Posture
Divorce Cause / Ruling on Ex Parte Originating Summons for Leave to File Divorce Petition Before Three Years
Legal Issues
- 1 Whether the applicant should be granted leave to file a petition for dissolution of marriage before the statutory three-year period has lapsed.
- 2 Whether the applicant has suffered exceptional hardship as required under Section 6(1) of the Matrimonial Causes Act.
Ratio Decidendi
The court found that the applicant had demonstrated exceptional hardship as required by Section 6(1) of the Matrimonial Causes Act. The evidence showed that the respondent deserted the applicant shortly after marriage, subjected her to mental anguish, and communicated unequivocally his intention to end the marriage. The respondent's letter and the applicant's uncontroverted affidavit established that the marriage had irretrievably broken down and its continued subsistence caused the applicant mental distress. In the absence of any opposition from the respondent, the court was satisfied that the statutory bar to filing a divorce petition within three years should be lifted in this case....
Court Disposition
application granted
Orders
- Leave is granted to the applicant to file a petition for divorce before the expiry of three years from the date of marriage.
- The petition for divorce must be filed within forty five days from the date of this ruling.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
DIVORCE CAUSE NO. 19 OF 2003 (O.S) IN THE MATTER OF: A PROPOSED PETITION BY:-
WINNIE WANJIRU MUTURI ……………………...…. APPLICANT
FOR DISSOLUTION OF HER MARRIAGE WITH
RUDOLF KARL DIESCH ………………….……… RESPONDENT
R U L I N G
The application before me is an Ex-parte Originating Summons filed on 30th May 2003 by WINNIE WANJIRU MUTURI (hereinafter referred to as “the applicant”) through the firm of M/S GUNGA MWINGA & CO. ADVOCATES in which the applicant seeks leave of the court to file a Petition for dissolution of her marriage with one RUDOLF KARL DIESCH (hereinafter referred to as “the Respondent”) solemnized on the 13th October 2000, notwithstanding that three years have not lapsed since the celebration of the said marriage.
Grounds in support of this application are that, since the celebration of this marriage the Respondent has occasioned the applicant extreme and exceptional hardship and the Respondent has since deserted the matrimonial home without any explanation.
The above grounds have been verified by the applicant in her affidavit where she has deponed that barely a week after the celebration of the marriage the Respondent abandoned her in Kenya and travelled to Germany, he came back to Kenya in August 2001 whereupon he began to despise her, calling her names and vowed never to live with her; that the Respondent left for Germany again in September 2001 without notice and has not come to her again. She finally deponed that the subsistence of this marriage continues to torture and mentally disturb her.
This summons was served upon the Respondent on the 30th May 2003 at Mombasa Beach Hotel by Mr. Fredric Maundu, a private process server. An affidavit of service was filed on 9th June 2003. No Replying affidavit or grounds in opposition have been filed by the Respondent.
It is statutorily provided in Section 6(1) of the Matrimonial Causes Act Cap 152 Laws of Kenya that no petition for divorce shall be presented to the court unless at the date of the presentation of the petition three years have passed since the date of marriage. Provided that a Judge may, upon application being made to him in accordance with the Rules made under this Act, allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hardship suffered by the Petitioner/ Applicant or of exceptional depravity on the part of the Respondent.
The applicant has annexed to her verifying and supporting affidavit a letter dated the 20th September 2001 which the Respondent wrote to her and which conclusively is a testimony of the irreversible end of this marriage. This letter reads:-
“RUDOLF KARL DIESCH
GERBERSIR 15,
63065 OFFENBACH A. MAIN
GERMANY .
TO: WINNIE WANJIRU MUTURI,
P.O. BOX 93050,
MOMBASA
20/09/2001
Dear Winnie,
It is with deep regret that I have to write to you as follows: -
As you are well aware, we got married on the 13 th October 2000. I appreciate for having had you as my wife for the period of time.
Unfortunately things have n ot been alright between us and we have had some domestic misunderstanding ever since we got married. It is therefore with deep sorrow that I now write to inform you that from today henceforth, I do not want anything to do with you and that you should desi st from using my name in any matter or any form of document. I would also like you to omit my name in your Kenyan Passport with immediate effect.
Kindly be further advised that you should also desist from visiting my premises whenever I am visiting in Ke nya nor even bother corresponding with me any further.
TAKE NOTE that should you go against what I have stated hereinabove you will be to blame for the legal and other steps that I will take against you.
Yours in regret,
RUDOLF KARL DIESCH”
A marriage is a Voluntary union between a man and a woman and in exclusion of all others. With particular reference to this cause, the applicant accepted the Respondent as her lawful husband and expected the Respondent to treat her with loving care and to make adequate provision for her.
Instead the Respondent, in the first year of such marriage communicated to the applicant his intentions expressed in the above letter.
In my view, therefore, the applicant’s pleas that the subsistence of this marriage continue to torture and mentally disturb her find favour with me.
The applicant has made out case and is entitled to file a petition for divorce before the expiry of three years from date of their marriage. This application is granted as prayed. The petition for divorce be filed within fourty five days from today. I award the applicant costs.
It is so ordered.
Dated and delivered at Mombasa this 12 th June 2003.
A. G. A. ETYANG
JUDGE