H M K v M K K [2018] KEHC 4760 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APP. DIVORCE CAUSE NO. 141 OF 2014

BETWEEN

H M K .....................PETITIONER

AND

M K K..................RESPONDENT

JUDGEMENT

1. The Petitioner H M Kand the Respondent M K K married each other at the District Commissioner’s office in Nairobi within the Republic of Kenya on the 28th of July, 1999.

2. According to the Petitioner the two cohabited in Maringo Estate and out of the union they sired the following children;

a) H N in 1995

b) M A in 1998

c) L M in March 2007

3. Though the Respondent was served with the Petition and Notice to appear he did not make any appearance nor file a response to the Petition.  Directions were therefore issued for the cause to proceed as an undefended cause.

4. In the Petition there are two main grounds for divorce.  Firstly that the Respondent had no capacity to contract a marriage with the Petitioner as he had prior to this marriage, entered into a Muslim marriage with another woman.  Secondly the Petitioner cited cruelty in the following terms:

a) Lack of warmth;

b) The Respondent demonstrated total contempt for the marriage;

c) Physical assault

d) Wilful neglect and lack of support;

e) The Respondent caused the Petitioner mental cruelty and anguish.

5. The Petitioner sought for the marriage to be dissolved, custody and costs.

6. At the hearing of the matter, the Petitioner informed the court that when the parties got married she lived in Maringo Estate with her mother as the Respondent resided with his first wife elsewhere.  Further that at the point of getting married she was not aware that the Respondent had contracted an Islamic marriage with another woman.

7. She also informed the court that whenever in the company of the Respondent, the Respondent assaulted the Petitioner, and he did not provide for her or the children of the marriage during the subsistence of their marriage.

8. It was also the Petitioner’s case that they two have not lived together since 2007 and each of them have moved on.  On her part she has two other children from another relationship and it is her wish that the marriage be dissolved.

9. At the hearing, the Petitioner dropped her quest for costs and maintenance from the Respondent.

10. Having read the Petition and heard the Petitioner in the absence of the Respondent, this being an undefended cause, three things emerged, firstly, the Respondent had no capacity to have married the Petitioner as he purportedly did, having contracted an Islamic marriage earlier.  Secondly, from the pleadings and the testimony of the Petitioner the marriage was fraught of cruelty and neglect, thirdly, the parties have each moved on since 2007 and the marriage cannot certainly hold.

11. For the above reasons this court finds that the Petitioner has sufficiently proved that the marriage has irretrievably broken down and proceeds to dissolve the same.  No costs are awarded. Decree Nisi absolute do issue within 30 days.

DATED, SIGNEDandDELIVEREDat NAIROBI this 30th DAY OF July, 2018.

.......................

ALI-ARONI

JUDGE

In the presence of:

Petitioner ….………………….………………….

Respondent………………………………………