[2010] KEHC 1085 (KLR)

[2010] KEHC 1085 (KLR)

The court found that the petitioner’s evidence of cruelty and desertion was unchallenged and credible, establishing that the marriage had broken down irretrievably. The parties had lived apart since 2004, and reconciliation efforts had failed. On the issue of custody, the court applied the principle that children of tender age should ordinarily be in the custody of their mother, absent any compelling reason to the contrary. As the respondent was already living with two of the children and there was no evidence against her fitness as a custodian, custody of all three children was awarded to her until they attain the age of 18. The petitioner was granted visitation rights, and no order as...

Citation
[2010] KEHC 1085 (KLR)
Parties
Applicant: W.K. T; Respondent: E.C.K
Court
High Court
Court Station
High Court at Kisii
Jurisdiction
Kenya
Judgment Date
29 July 2010
Case Number
Divorce Cause 1 of 2005
Procedural Posture
Divorce Cause / Judgment
Outcome
Petition for dissolution of marriage allowed; custody of children granted to respondent; visitation rights to petitioner; no order as to costs.
Judges
DK Musinga
Legal Topics
Divorce, Custody of Children, Matrimonial Breakdown
Source Language
English
Family and Children Divorce Custody of Children Matrimonial Breakdown

Case Brief

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Parties

W.K. T

Applicant

E.C.K

Respondent

Procedural Posture

Divorce Cause / Judgment

Legal Issues

  1. 1 Whether the petitioner has established grounds for dissolution of marriage under the African Christian Marriage and Divorce Act.
  2. 2 Whether the petitioner or respondent should be granted custody of the children of the marriage.

Ratio Decidendi

The court found that the petitioner’s evidence of cruelty and desertion was unchallenged and credible, establishing that the marriage had broken down irretrievably. The parties had lived apart since 2004, and reconciliation efforts had failed. On the issue of custody, the court applied the principle that children of tender age should ordinarily be in the custody of their mother, absent any compelling reason to the contrary. As the respondent was already living with two of the children and there was no evidence against her fitness as a custodian, custody of all three children was awarded to her until they attain the age of 18. The petitioner was granted visitation rights, and no order as...

Court Disposition

Petition for dissolution of marriage allowed; custody of children granted to respondent; visitation rights to petitioner; no order as to costs.

Orders

  • Marriage between the petitioner and respondent is dissolved; decree nisi to issue forthwith.
  • Custody of the three children is granted to the respondent until they attain the age of 18 years.