[2014] KEHC 337 (KLR)
The court found that the petitioner had sufficiently proved the grounds of cruelty, adultery, and desertion against the respondent. The evidence, including corroboration by the petitioner's brother, established that the respondent engaged in conduct amounting to cruelty and adultery, and that the marriage had ceased...
Source-derived case information.
- Citation
- [2014] KEHC 337 (KLR)
- Parties
- Applicant: Z M M; Respondent: J G M
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 4 of 2012
- Procedural Posture
- Divorce Petition / Judgment
- Outcome
- petition allowed; divorce granted
- Legal Topics
- Divorce, Irretrievable Breakdown of Marriage, Cruelty, Adultery, Customary Marriage, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Z M M
Applicant
J G M
Respondent
Procedural Posture
Divorce Petition / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent has irretrievably broken down.
- 2 Whether the respondent was guilty of cruelty and adultery as alleged by the petitioner.
- 3 Whether the petitioner is entitled to a decree of divorce.
Ratio Decidendi
The court found that the petitioner had sufficiently proved the grounds of cruelty, adultery, and desertion against the respondent. The evidence, including corroboration by the petitioner's brother, established that the respondent engaged in conduct amounting to cruelty and adultery, and that the marriage had ceased to exist since 2008. The respondent failed to contest the allegations at the hearing. The court concluded that the marriage had irretrievably broken down and that the petitioner had not condoned or connived at the respondent's conduct. Accordingly, the court granted the divorce and ordered the issuance of a decree nisi, to be made absolute after the statutory period.
Court Disposition
petition allowed; divorce granted
Orders
- The marriage between the petitioner and respondent is dissolved.
- A decree nisi to issue pending the statutory period before decree absolute.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
DIVORCE CASE NO. 4 OF 2012
Z M M………………………………….………………..PETITIONER
VERSUS
J G M………………………………………….............RESPONDENT
JUDGMENT
1. The divorce petition herein is brought by one Z M M against his wife, J G M the respondent in this petition. The petition itself is dated 25th May, 2012 and was duly filed on 28th May, 2012 at High Court of Kenya, Kisii.
2. The respondent appointed counsel, M/s Nyakundi & co. Advocate filed her answer to the petition hereof. By affidavit of service dated 25th June, 2014, a hearing notice dated 2nd May, 2014 was duly served upon counsel for the respondent M/s Nyakundi & Company Advocates, in Nairobi. However, on the hearing day, the advocate was not in court and the matter had to proceed without her representation. However, on the 18th September, 2014, the petitioner appointed M/s S.O. Omwega to replace M/s Nyabuti & Co. Advocate.
3. In his testimony, Z M M states that he married the respondent under Ekegusii customary law and were blessed with four children:
i. E B M
ii. A K M
iii. C M M
iv. J M M
4. Both lived at Magena in Kisii and later at Masimba rural health. However, in 1989, the petitioner was transferred to Kenyatta National Hospital. The petitioner who worked as a clerk, was living at Kenyatta National Hospital quarters in Nairobi. Whilst in Nairobi she procured an employment for his wife, as a clerk in supplies department of the hospital, Kenyatta National Hospital.
5. In 2001, the petitioner moved to the United States, North Carolina. In 2005 he took all his children to the United States. They all live here with him except one A K M who has since been deported back to Kenya for unbehaviour.
6. The petitioner says in 2008 when he came back to visit his wife, he found ten(10) condoms in her handbag. Further, earlier when he sent money, 250USD to his wife to give to his J K. When K visited my wife’s house early in the morning, he found one Kithaka- a stranger, in the house. This person who had wrapped a towel around his waist from the bathroom, going to the bedroom. He said he knew one Kithaka when he worked at Kenya National Hospital. When my brother asked J G what Mr. Kithaka was doing in the house. She denied that he was in the house.
7. On finding condoms, the petitioner asked his wife about what she had there(condoms) on her bag. She simply kept quiet. That night, the respondent did not come to the bedroom, she slept on the sofa-set and the petitioner slept, alone in the bedroom. The following day, the petitioner went to Siokimau, where he was building a house, when he returned to Kenyatta National Hospital quarters, the house was locked against him. She even refused to give the key to my brother when I send him to get the house key.
8. The petitioner made several efforts to get people to talk to her to reconcile the marriage. She refused to co-operate. The marriage, in his view, has failed. I ask the court to dissolve the said marriage and grant a divorce to the petitioner.
9. PW2, the petitioner’s brother, J K, corroborated the petitioner’s evidence. He sighted J G and Kithaka kissing at Wollmatt Store in down town Nairobi, he also found Kithaka, wrapped in a towel, early in the morning, from bathroom to the bedroom, a sign of somebody who slept there.
10. The marriage, in my view, has ceased to exist since 2008 to date- six(6) years down the line. It is interesting to note at this juncture that amongst the list of documents, there is a forged certificate of divorce, presumably by the respondent.
11. The petitioner therefore has suffered cruelty, more particularly, emotional torture, public ridicule, humiliation and odium. The marriage has irretrievably broken down. The petitioner has neither connived at nor condoned the respondent’s cruelty and desertion.
12. Therefore the court finds that the petitioner has proved his case adequately. In this regard the petition dated 25th day of May, 2012 is hereby allowed, accordingly this court grants the petitioner herein a divorce, the decree nisi to issue pending the statutory period before the decree absolute to follow.
13. It is so ordered.
Dated and Delivered at Kisii this 14th day of November, 2014
C.B. NAGILLAH,
JUDGE.
In the presence of:
Magara holding brief for Omwega for the petitioner/applicant
G.M. Nyambati & Co. not in court for the respondent
Edwin Mongare Court Clerk.