E.T. M v R.W & M.M.M [2011] KEHC 3152 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

(Coram: Ojwang, J.)

DIVORCE CAUSE NO. 31 OF 2008

E.T. M ………………………………………………………….PETITIONER

- VERSUS -

R.W ………………….....……………………………….1ST RESPONDENT

M.M.M………………....……………..…………………2ND RESPONDENT

JUDGMENT

The Petitioner married 1st respondent on 22nd November, 1999at the District Commissioner’s office, Nyeri and, thereafter, the two lived and cohabited as husband and wife, both in Nyeri and in Mombasa. The 1st respondent came into the marriage with one of the children in the family, T.G, who was born in 1996 and is now aged 15; and another child, L. R, was born in 2002.

Currently based in Mombasa, the petitioner being an employee of [......[, and 1st respondent an employee of [........]Supplies, the couple has not enjoyed good matrimonial relations for some time; the petitioner pleads that since 2000, 1st respondent has subjected him to physical and mental cruelty, apart from engaging in acts of adultery. Of these incidents, the petitioner sets out particulars as follows:

(i) in 2000, 1st respondent deserted the matrimonialhome for six months;

(ii) on one occasion between 2000 and 2001 thepetitioner found 1st respondent in a compromising situation with the father of T.G;

(iii)since 2005, 1st respondent has committed adultery with 2nd respondent, who is cousin to the petitioner;

(iv)since early 2007, 1st respondent has formed a relationship with 2nd respondent which excludes the petitioner;

(v)1st respondent has gloated over her plural liaisons,and has remarked to the petitioner that he even has no certainty that L.Ris truly his biological son;

(vi)2nd respondent has arrogated to himself matrimonial roles belonging to the petitioner, without the petitioner’s knowledge;

(vii)1st respondent has shown disrespect to thepetitioner by ridiculing his male role;

(viii)the conduct of the two respondents proved so offensive that, in August, 2007 the petitioner had to leave the matrimonial home, and set up a separate life;

(ix)1st respondent has defied marriage counselling, and stays out late in the company of 2nd respondent.

The Petitioner pleads that the marriage between himself and 1st respondent has irretrievably broken down and the parties now lead independent lives.

The petitioner avers that this petition is not prosecuted in collusion with 1st respondent or any other person who may be interested in there being a divorce; and he asks that the marriage be dissolved; that he be given custody/access in respect of L.R. He asks that the respondents be condemned in costs.

The 1st respondent, in her answer-to-petition dated 5th August, 2008 denies the charge of cruelty and adultery, and the particulars stated by the petitioner; she avers that it is the petitioner who has treated her with cruelty on several occasions since the marriage was celebrated. She asserts that the petitioner is guilty of desertion, “since he has moved out of the matrimonial home….. and has also committed adultery by living and staying with another woman”.

This matter was heard on 5th July, 2010 learned counsel Mr. Kirui representing the petitioner, but the respondents, though duly served with hearing notice, were unrepresented.

The petitioner, as PW1, gave testimony confirming the content of his pleadings in the petition. He said his marriage to 1st respondent had taken place in 1999, and was followed with a church wedding in 2000. The 1st respondent came into the marriage with a child, T.G, whose father was known to the petitioner; and in November, 2002 another child, L.R, was born to the couple.

From the very beginning, matrimonial relations were strained, with 1st respondent returning to her parents’ home and remaining there for a period of six months. After the petitioner’s transfer from Nyeri to Mombasa, in 2004some more stress afflicted his family: while he was hospitalized in 2006 he had invited his cousin, 2nd respondent, whom he provided with accommodation, but who later wormed himself into a snug relationship with 1st respondent, driving a wedge between her and the petitioner: as the three went out visiting she would smugly bluster “she was a proud owner of two husbands”. In the following days the petitioner, on return from work, had witnessed the respondents sitting intimately in one chair; he would find the two at the discotheque together; and the two would stay out long hours, returning home in the small hours of the morning; the two would go out as boy-friend and girl-friend; on one occasion the petitioner found 2nd respondent’s clothes in the wardrobe that the petitioner shared with his wife. According to the petitioner, his cousin (2nd respondent) had displaced him from his matrimonial perch. The petitioner was forced to move out of the matrimonial home. He asked the Court to dissolve the marriage.

Learned counsel, Mr. Kirui urged that the petitioner’s case was crystal-clear and there was no need to make any submissions.

The purpose of marriage is to provide emotional support for the parties, and to give a structure for mutual sustenance in respect of those workaday activities that move the process of living. When those in the marriage relationship no longer jointly occupy their base, the matrimonial home, the set-up for marriage is undermined; when the primary incidents of the marriage-bond, such as intimacy, kind feelings and emotional support, are nullified, the marriage relationship becomes burdensome; when the exclusive sensations and joys of the marital union are opened out to outsiders, its precious bond is severed, and there is no further business holding the parties together; the only solution is divorce, as it sets the parties at liberty to rearrange the emotional aspect of their lives.

In the case of the parties to the marriage herein, all those bonds have collapsed, and to be fair, the petitioner must be set at liberty.

I hereby grant the petitioner a decree nisi of divorce, which is to be made absolute subsequently, upon a suitable application being made. The petitioner is granted unlimited access to the child of the marriage L. R. Each party shall bear own costs.

DATEDandDELIVEREDatMOMBASAthis1stday ofApril, 2011.

…………………………..

J. B. OJWANG

JUDGE