A A W v J O W [2014] KEHC 3913 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 96 OF 2004

A A W…………..…...……....……………………………....PETITIONER

VERSUS

DR. J O W……….….……………………………………..RESPONDENT

J U D G M E N T

By an amended petition filed in court on 2nd August 2013, the Petitioner petitioned the court to be divorced from the Respondent. According to the said petition, the Petitioner was married to the Respondent on 8th November 1985 at the Registrar’s Office in Mombasa. The marriage was celebrated under the Marriage Act. After the celebration of the said marriage, the Petitioner and the Respondent cohabited together as husband and wife at Bamburi Estate in Mombasa. The marriage was blessed with three (3) issues who are now adults. According to the Petitioner, since the celebration of the said marriage the Respondent had treated her with cruelty. She sets out the particulars of cruelty in her petition for divorce. In particular, she alleged that the Respondent had humiliated and embarrassed her by telling people that they were not married and that the first issue of the marriage was not his child.  She accused the Respondent of being an irresponsible father by neglecting the welfare of the issues of the marriage. The Petitioner averred that the Respondent is a drunkard and had exhibited violent tendencies towards her. She states that the Respondent had on several occasions physically assaulted her during the subsistence of the marriage. She stated that in 1987, the Respondent threw her out of the matrimonial home thereby denying her conjugal rights.  Since then, the Petitioner and the Respondent have been separated. The Petitioner further averred that the Respondent had committed adulterous affairs with several women that she particularized in her petition for divorce. It was for these reasons that the Petitioner is seeking to have the marriage dissolved. The Petitioner currently resides out of the country, in Texas, United States of America.

When the Respondent was served, he duly entered appearance and filed an answer to the petition for divorce. He further cross-petitioned to be divorced from the Petitioner. He denied the allegations of cruelty made in the petition for divorce. He averred that it was the Petitioner who left the matrimonial home in December 1987. She left to live with one S O. A consent order recorded in court on 19th June 2014 by the Petitioner and the Respondent as a result of which the Respondent withdrew his cross-petition for divorce. On her part, the Petitioner abandoned her petition for divorce on the ground of cruelty. It was agreed that the divorce cause proceeds on the ground of desertion.  The prayer for costs was also abandoned by both the Petitioner and the Respondent.

During the hearing of the divorce cause, it was only the Petitioner who testified.  The counsel for the Respondent was present. She basically reiterated the contents of her petition for divorce.  She attributed the failure of the marriage to the fact that the first born issue did not resemble the Respondent.  For this reason, the Petitioner complained that they eventually quarreled a lot to the extent that they separated in 1987. She testified that cohabitation had not resumed since then. It was for this reason that the Petitioner urged this court to grant her petition for divorce.

After carefully evaluating the evidence, this court formed the opinion that the separation of more than twenty six (26) years is sufficient proof that indeed the marriage between the Petitioner and the Respondent has irretrievably broken down with no possibility of salvage. If there was to be reconciliation, then the same should have been attempted in the twenty six (26) years that the parties herein had been separated. It is apparent to the court that the Petitioner and the Respondent have each gone their separate ways. This court will grant the petition for divorce on the ground of desertion.

In the premises therefore, the marriage celebrated between the Petitioner and the Respondent on 8th November 1985 at the Registrar’s Office in Mombasa is hereby dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute thirty (30) from the date of this judgment.  There shall be no orders as to costs.

DATED AT NAIROBI THIS 7TH DAY OF JULY, 2014

L. KIMARU

JUDGE