J O A v G N M [2013] KEHC 772 (KLR)

PUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO.163 OF 2009

DR. J O A….……………………......…………………………..PETITIONER

VERSUS

G N M….……………..…………………………………RESPONDENT

J U D G M E N T

The Petitioner and the Respondent married on 2nd January 1997 at the District Commissioner’s Office Eldoret. The marriage was celebrated under the Marriage Act. After the celebration of the said marriage, the Petitioner and the Respondent cohabited together as husband and wife in Eldoret and Nairobi. The marriage has been blessed with two (2) issues, a son and a daughter born on 19th December 1997 and 16th November 2003. According to the Petitioner, the Respondent had treated him with cruelty.  He set out the particulars of cruelty in his petition for divorce. He accused the Respondent of not showing him love or affection and instead subjected him to continuous psychological torment by making impossible demands.  He averred that the Respondent was rude, violent and abusive towards him. She was also quarrelsome and had subjected the Petitioner to frustration, anxiety and ridicule. He accused the Respondent of blocking all the channels of communication in the marriage as a result of which their sexual life had suffered. He further accused the Respondent of deserting from the matrimonial home.  He stated that the Respondent deserted the matrimonial home in October 2007 and since then they have lived separately. It is for the above reasons that the Petitioner urged the court to grant his petition for divorce. He further prayed to be granted custody of the children of the marriage. In the alternative, he prayed that he be granted periodic access to the children of the marriage.

The Respondent was served with the summons to enter appearance together with a copy of the petition for divorce. She did not enter appearance. Neither did she file any papers in opposition to the petition for divorce. The Deputy Registrar of this Court issued a certificate certifying the cause as suitable to be heard by this court as an undefended divorce cause. At the hearing of the cause, this court heard oral evidence adduced by the Petitioner. He basically reiterated the contents of his petition for divorce. He told the court that the Respondent had treated him with cruelty as pleaded in his petition for divorce. She had deserted from the matrimonial home since October 2007. She had not returned to the matrimonial home since then. This court has evaluated the facts of this cause. It was clear to this court that indeed the marriage between the Petitioner and the Respondent had irretrievably broken down with no possibility of salvage. The instances of cruelty narrated by the Petitioner, including denial of conjugal rights is clear evidence that the marriage of the Petitioner and the Respondent had been in the doldrums long before they were separated. They have been separated for a period of more than six (6) years. If there was any chance that the Petitioner and the Respondent would be reconciled, then reconciliation would have been attempted in the intervening period. This court formed the opinion that the Petitioner established the matrimonial offences of cruelty and desertion to the required standard of proof on a balance of probabilities. This court will grant the petition for divorce.

In the premises therefore, the marriage celebrated between the Petitioner and the Respondent on 2nd January 1997 at the District Commissioner’s Office, Eldoret is hereby dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute thirty (30) days from the date of this judgment. The issue of the custody and maintenance of the children shall be determined by the Children’s Court which has jurisdiction in the first instance to deal with the dispute. The Petitioner told the court that he was taking care of the said children. If there shall be any dispute, the parties know where to go for appropriate relief.  There shall be no orders as to costs.

DATED AT NAIROBI THIS 8th  DAY OF  NOVEMBER,  2013

L. KIMARU

JUDGE