H S M v O J [2014] KEHC 6858 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

DIVORCE CAUSE NO. 44 OF 2013

H S M…....……..……..….………PETITIONER

VERSUS

O J………………………………….……....…RESPONDENT

JUDGMENT

The petitioner H S M has filed this petition dated 19th June, 2013 seeking the dissolution of her marriage to the respondent O J.  The respondent was duly served with both the petition and summons to enter appearance vide the affidavit of service filed in court on 20th August, 2013.  He did acknowledge receipt by signing the notice.  However, the respondent did not enter appearance nor file any reply to the petition.  The matter proceeded as an undefended cause.

The petitioner testified in court on 11th December, 2013.  She told the court that she met and married the respondent on 17th December, 1994 at Likoni Catholic Church.  Thereafter the couple co-habited as man and wife in[Particulars withheld].  They were blessed with two (2) children

L M born in 1992

A M born in 1997

The petitioner claims that the respondent is a habitual drunkard and has been abusive towards her.  She states an incident on 25th August, 2013 when he assaulted her and she reported the incident at Nyali Police station.  From May, 2013 the couple have been sleeping in separate bed-rooms and have not had conjugal relations.  The petitioner testifies that her efforts to seek reconciliation by involving the parish priest have failed.  Efforts by her parents to intervene have also failed.  She states that despite having made several promises the respondent has not changed his ways.

The testimony of the petitioner remains unchallenged.   The respondent though properly served opted not to participate in these proceedings.  I have no reason to doubt the testimony of the petitioner.  From her evidence she has made several attempts to seek to discuss and resolve their differences but to no avail.  She is clearly unhappy in the current situation.  For a couple to occupy separate bed-rooms is a clear sign that something ails the marriage.  The respondent’s actions of drunkenness, sleeping out of home and assault amount to cruelty.  I therefore allow this petition for divorce.  Decree nisi to issue to be made absolute within three (3) months of today’s date.  No order on costs.

Dated and delivered in Mombasa this 24th day of February, 2014.

M. ODERO

JUDGE

In the presence of:

Petitioner in person

Court Clerk Mutisya