J B D v TA A [2006] KEHC 3089 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Divorce Case 150 of 2004

J B D………..............................………………………PETITIONER

VERSUS

T A A ………............................………………….RESPONDENT

JUDGMENT

The petitioner, J B D sought an order from court to dissolve his marriage to his wife, T A A, on grounds of desertion whose particulars he gave in paragraph 7 of his petition.

The respondent filed an answer and cross petition, denying the claim of desertion.  She instead prayed the court to dismiss the petition, and further that her cross petition that the marriage has irretrievably broken down and should therefore be dissolved, be allowed, and she be paid alimony as the court may direct.  The cause was certified by the Registrar, as defended.

T, who had filed an application for the transfer of this cause to Mombasa, withdrew the same on the day of the hearing.

J the petitioner testified that he got married to the respondent T on 26th February, 2000 in Mombasa.

That they lived and cohabited at [particulars withheld] in Kisumu.  There are no children of the marriage.

The petitioner confirmed that both himself and his wife are residents of Kenya, and further, that they have not filed any case concerning their marriage before this one.

The petitioner complained that his wife deserted him on 7th June 2001, and has not resumed cohabitation with him todate.  He lamented,

“My marriage has broken down.  It cannot be saved.  I have not condoned the desertion.  I am asking for divorce……….”.

The respondent identified the marriage certificate produced by the petitioner in court.  She also confirmed that the petitioner is her husband, but lamented that they do not live together any more as the petitioner chased her from the matrimonial home saying it was over and even gave her a one way air ticket to Mombasa.  She identified the air ticket in court and produced it as an exhibit.  She also produced the invoice dated 6th June, 2000.

The respondent confirmed that there were no children in the marriage.  She recalled that before she was chased away by her husband, she was due to come to Nairobi from Kisumu, for a medical check up.

She testified further that in May 2000, she traveled to Mombasa for a medical check up as she had an infection.  She believed that she was pregnant by then.  She was attended by a Doctor in Mombasa who admitted her into hospital.  A scan was taken and it was found that she was actually NOT PREGNANT.

The respondent produced four reports of the medical examinations carried out on her.  The respondent went for a DNC, with her husband’s approval and thereafter returned to Kisumu where her husband and his mother accused her of having had an abortion, a charge which she denied.

The respondent complained that the petitioner has been cruel to her over the years.  That he comes home late and does not speak to her and even his family is cruel to her.

The respondent commented that she had done everything in her power to save her marriage but still the marriage broke down.  She recalled the 8th July 2001, when she travelled to Nairobi with her mother and brother in an effort to discuss her marriage with her husband’s family.  She produced air tickets they purchasing for the trip.

The respondent prayed the court to grant her divorce and pay her alimony.  She also complained that her husband took her jewellery, but she promised to raise the issue during the hearing for maintenance.

What I heard was evidence of one spouse against the other.  However, the respondent wife produced several medical reports which I consider corroborated her evidence about her illness and the number of times she consulted her doctors.

The particular medical report produced as Ex.B does show that she could have been pregnant prior to the examination by the doctor.  Furthermore, the reports show that she suffered stress over a period of time.

The respondent’s attempts at saving her marriage is also shown by the fact of her purchasing air tickets and traveling to Nairobi to meet her husband and his family for a discussion.

From the above evidence, I am satisfied that the respondent suffered stress which must have resulted from cruelty suffered at her husband’s hands.  I refuse to accept the husband’s claim, that she deserted the matrimonial home and never returned.  I find that she was forced by circumstance to leave.

I therefore proceed to dismiss with costs the husband’s petition for divorce based on desertion and instead grant a divorce on grounds of cruelty as pleaded by the wife (T) in her cross-petition.

I award the respondent T, the costs of the cross petition.

Finally, I direct that the decree nisi should issue straight away today and the same to be made absolute within a period of one month from today.

On the issue of maintenance, the parties should appear before the presiding Judge in the Family Division to seek such orders as this claim was left to be urged after the conclusion of the divorce.

Dated at Nairobi this 24th day of March, 2006.

JOYCE ALUOCH

JUDGE