D.O.O V J.W.M & ANOTHER [2013] KEHC 3837 (KLR)

REPUBLIC OF KENYA

High Court at Eldoret

Divorce Cause 4 of 2011

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D.O.O :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

J.W.M ::::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT

W.W :::::::::::::::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT

JUDGEMENT

The Petitioner, D.O.O came to this court on 3rd June, 2011, seeking the dissolution of the movital union between him and his wife, J.W.M.

The Petition was served upon both the wife of the petitioner and the co-respondent, W.W.

The wife to the petitioner filed a Answer to the Petition, coupled with a Cross-Petition.

In the answer to the Petition, the 1st Respondent confirmed that she and the Petitioner had not lived together for almost ten (10) years.

However, the 1st Respondent categorically denied the assertions that she had committed adultery with the correspondent. She also denied the petitioner's assertions of cruelty.

The 1st Respondent's contention was that it was the petitioner who had committed adultery. The said adultery is said to have led to the physical separation between the Petitioner and the 1st Respondent, from the year 2002.

When the case came up for trial, the Respondents failed to attend court. However, because I was satisfied that they had been duly served, the trial proceeded.

The petitioner testified on oath, and said that the 1st Respondent had sought a transfer from Eldoret to Nairobi in March, 2002.

Thereafter, the 1st Respondent returned to Eldoret in December, 2004, and she took away all the four children of their marital union.

As the Respondents did not attend court at the hearing, the evidence tendered by the Petitioner was uncontroverted. Furthermore, and in any event, the 1st Respondent confirmed, in her Response to the Petition, that she had not lived with the Petitioner for about 10 years. As her said Response was filed on 7th February, 2012, it implies that by 11th March, 2013, when the Petition came up for hearing, the two parties had been living separate lives for over eleven (11) years.

During that whole period of time, the Petitioner has been denied his conjugal rights. That fact constitutes both desertion as well as cruelty. That alone is sufficient ground to justify the grant of the divorce sought by the petitioner. Accordingly, I do now grant an order dissolving the marriage between the Petitioner and the 1st Respondent.

Meanwhile, as no evidence was led by the 1st Respondent to prove any of the assertions set out in her cross-petition, the said cross-petition is dismissed, with costs to the Petitioner.

The costs of the Petition are also awarded to the Petitioner.

As regards the custody of the children, I note that A.M.O and N.N.O are already above the age of 18. They therefore have the legal right and authority to make their own decisions about who they wish to relate to, and in what manner.

By the Petitioner's own admission, the children have all lived with their mother from the year 2004. That is a period of about nine (9) years.

The Petitioner has not led any evidence to justify an order to suddenly uproot the two younger children from their mother.

In any event, there have been separate legal proceedings before the Children's Court, addressing the issue of the custody of the children in question. If either of the parties were dissatisfied with such orders made by the Children's Court, they would move the court appropriately. For now, I decline to make any other orders on the issue of the custody of M.B.O and C.N.O.

DATED SIGNED AND DELIVERED AT ELDORET

THIS 15TH DAY OF APRIL, 2013.

FRED A. OCHIENG

JUDGE

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