J.O v D.M.K [2008] KEHC 3314 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Divorce Case 42 of 2007

J.A.O………………………….PETITIONER

VERSUS

D.M.K……………………….RESPONDENT

JUDGMENT

The Petitioner, J.A.O and the Respondent D.M.K, were married on 21st November 1996 under the Marriage Act (Cap 150 Laws of Kenya).  They were not blessed with any child although the Petitioner had her own child before her marriage to the respondent.  They lived and cohabited as husband and wife in Mombasa for just over one year when in May 1998 the respondent left the petitioner.

On 7th September 2007, the petitioner filed this petition for divorce on two main grounds that the respondent had since the celebration of their marriage, treated the petitioner with cruelty and that the respondent has since May 1998 deserted the petitioner.

The respondent has filed no answer to the petition.  The petition came up for hearing on 12th March 2008 when the petitioner testified that the respondent was a person of drunken habits and badly treated the petitioner for the entire period of the marriage.  The petitioner further testified that since May 1998 the respondent has never contacted her nor resumed cohabitation with her and is now in rehabilitation because of his drinking.  The petitioner also told the court that since leaving the matrimonial home the respondent has not tried to reconcile with her and that there is no chance of any reconciliation.

In the premises, the petitioner prayed that her marriage with the respondent be dissolved.  Having heard the petitioner’s testimony which was not contradicted, I make the following findings.  The petitioner has predicted her petition on the grounds of cruelty and desertion.  With regard to cruelty the petitioner relies on the respondent’s drunken habits and the resultant bad behaviour.  She did not state in what manner that behaviour had affected her.  For cruelty to found a decree for divorce it would have to be willful and unjustified conduct of such a character as to cause danger to life limp or health bodily or mentally or to give rise to a reasonable apprehension of such danger.  (See Russell – v – Russell [1895] p. 187).  In view of that definition of cruelty I am unable to hold that the petitioner has proved cruelty on the part of the respondent.

With regard to the ground of desertion the petitioner has testified that since May 1998, the respondent has never contacted her and has since never cohabited with her.  Indeed, the petitioner told the court that the respondent is in rehabilitation because of his drinking.  The respondent has been in desertion since May 1998 a period of more than 9 years preceding the presentation of this petition.  The Respondent is therefore clearly in desertion of the petitioner.  On that ground I allow the petition and order that the petitioner’s marriage to the respondent be and is hereby dissolved.  Decree nisi to issue.  The same to be made absolute after one month thereafter.

The respondent shall pay the petitioner’s costs.

Orders accordingly.

DATED AND DELIVERED AT MOMBASA THIS 16TH DAY OF APRIL 2008.

F. AZANGALALA

JUDGE

Read in the present of:

Mutisya H/B for Njoroge for the Petitioner.

JUDGE

16TH APRIL 2008