J L M v E L M [2019] KEHC 3641 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 27 OF 2015 CONSOLIDATED WITH DIVORCE CAUSE NO. 102 OF 2015

JLM..........................PETITIONER

VERSUS

ELM.......................RESPONDENT

JUDGMENT

1. The Petitioner herein, JLM who is also the Respondent in (Divorce Cause No. 102 of 2015), filed this Petition dated 2nd February, 2015 which has been consolidated with the Respondent ELM’s petition dated 2nd June, 2015 in Divorce Cause No. 102 of 2015 against the Petitioner herein.

2. The Petitioner and the Respondent then a spinster and a bachelor respectively solemnized their marriage on 2nd November, 1990 at the Registrar’s Office in Iten, Elgeyo Marakwet under the Marriage Act (Cap 150) of the Laws of Kenya. A Certificate of marriage serial number [xxxx] was issued to them. The couple cohabited in Thika and Tambach and were blessed with two issues namely, SLM and BSM.

3. The Petition dated 2nd February, 2015 is premised on grounds of desertion and cruelty against the Petitioner by the Respondent as particularised in the Petition. The Petitioner states that since the celebration of their marriage, the Respondent has been guilty of desertion and acts of cruelty against her.

4. The Petitioner complained that sometime in the month of December 2008, the Respondent left the matrimonial home he shared with the Petitioner and has not been heard from since nor communicated with the Petitioner. Further, that the Respondent abandoned the Petitioner without having regard for her welfare or the issues of the marriage.

5. On the particulars of cruelty, the Petitioner averred that the Respondent failed to be a companion to the Petitioner and has been committing adultery with other women. He has also denied her conjugal rights. The Petitioner also complained that the Respondent showed no care or concern for the marriage and abandoned his duties as a spouse to the Petitioner. The Respondent exposed the Petitioner to mental anguish due to his conduct.

6. The Petitioner urged that due to the aforesaid acts of desertion and cruelty the Petitioner strongly feels that they cannot continue to hold out as husband and wife with the Respondent.  She therefore asked the court to dissolve the marriage between her and the Respondent as the marriage had irretrievably broken down. She confirmed that this Petition had not been presented or prosecuted in collusion with the Respondent, nor had she connived or condoned the acts of cruelty, and unfaithfulness complained of.

7. Upon being served with the Petition, the Respondent filed his Answer to Petition and a Cross-petition. He denied all grounds advanced by the Petitioner. He accused the Petitioner of deserting the matrimonial home leading to the irretrievable breakdown of the marriage. In the Cross-petition, he too prayed that the marriage between the Petitioner and himself be dissolved.

8. On 19th October, 2017 the Deputy Registrar certified that the matter was suitable to proceed for hearing as a defended cause for one day in Nairobi before a single Judge. At the hearing, the Petitioner stated that attempts to reconcile with the Respondent have failed, and that there was no possibility of reconciliation. She alluded that the couple had been living separately for the past ten (10) years because the Respondent was a drunkard and a violent person. As a consequence, the marriage had irretrievably broken down. She urged the court to dissolve the marriage.

9. In his Cross-petition, the Respondent stated that the Petitioner had, during the subsistence of the marriage, deserted the Respondent without a justifiable cause. He stated that he has always taken care of his family even after the Petitioner abandoned him. He asserted that efforts of reconciliation have been futile. He prayed that that the marriage be dissolved.

10. I have perused the grounds of the Petition, the Answer thereto and the grounds of the Cross-Petition. I have also considered the oral evidence of the Petitioner and the Respondent as tendered in Court. What is not in dispute is that the parties have lived apart for the last ten (10) years. It is also clear that there have been irreconcilable differences between them and both parties want the marriage celebrated between them to be dissolved.

11. They confirm that this Petition has not been presented or prosecuted in collusion, neither have they connived or condoned the matrimonial offences which each has complained of. They both certify that there have been no previous proceeding filed regarding the marriage.

12. From the foregoing, I make the finding that due to the matrimonial offences set out above and which have been proved on either side on a balance of probabilities the marriage between the two parties remains on existence in paper only. Consequently, I make the finding that the marriage celebrated between the parties herein on 2nd November, 1990 has broken down irretrievably and cannot be salvaged.

In the premise, I make the following orders:

i.   That the marriage celebrated between the Petitioner and the Respondent on 2nd November, 1990 at the Registrar’s Office in Iten, Elgeyo Marakwet is hereby dissolved.

ii.  That a Decree Nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this Judgment.

iii. There shall be no orders as to costs.

SIGNED DATED AND DELIVERED IN OPEN COURT THIS 17TH DAY OF OCTOBER, 2019.

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

L. A. ACHODE

HIGH COURT JUDGE

In the presence of .................................... Advocate for the Petitioner

In the presence of ....................................Advocate for the Respondent