K T M v J W M [2015] KEHC 2717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 94 OF 2014

BETWEEN

K T M …………………………………………......PETITIONER

AND

J W M…………………………………….......…RESPONDENT

JUDGEMENT

1. On 1st February 2008, the Petitioner then a bachelor known as K T M, was lawfully married to the Respondent J W M then a spinster and a certificate Serial No. [particulars withheld] issued to them in accordance with the Marriage Act Cap 150 Laws of Kenya.  The marriage was celebrated at the Registrar’s office in Mombasa and thereafter they cohabited as husband and wife in Nyali Mombasa.  They were blessed with two issues of the marriage, who were aged as follows at the time of filing Petition.

a) C G M 7years 1 month

b) J N M 1 year 10 months

2. At the time of filing the Petition Both the Petitioner and Respondent were domiciled in Kenya where the Petitioner worked in Nairobi and the Respondent was a business woman.

3. The amended Petition filed on 29th April 2014 is premised on grounds of desertion and cruelty said to have been occasioned by the Respondent against the Petitioner.  Upon being served with the process, the Respondent filed her Answer to the Petition. She subsequently filed an amended answer to the petition and a cross petition and denied all the grounds advanced by the Petitioner calling the Petitioner to strict proof thereof.  In the cross petition she prayed to be awarded Kshs.91,000/- for maintenance arguing that she was jobless while the Petitioner was employed by [particulars withheld] as a sales manager earning Kshs100,000/= per month.

4. On 26th February 2015 the Deputy Registrar certified that the matter was suitable to proceed for hearing as a defended cause for one day in Nairobi.  At the hearing on 19th March 2015, the Petitioner testified and reiterated what he had set out in the Petition.   The Respondent also testified and reiterated what she had set out in her Answer to the petition.

5. The acts of desertion as set out in the petition and in the oral evidence of the Petitioner are that sometimes in July 2012, the Respondent left the matrimonial home in Mombasa to visit her parents for what was supposedly a short vacation and never returned.

6. On the acts of cruelty the Petitioner accused the Respondent of becoming lazy and not giving him love and companionship.  He complained of a lot of interference and humiliation from the Respondent’s parents and siblings and that the Respondent was rude, arrogant to him.  That she was dishonest with him such as when he put in some money in a business the Respondent was running and she later claimed that the money had been stolen.

7. The Petitioner further stated that he lost his job prior to the Respondent’s moving out of the matrimonial home and that that is when the Respondent’s cruelty showed itself.  That the Respondent told him that his savings were too little to sustain them and were below what she was used to.  She then left home.  The Petitioner denied that he was the perpetrator of the cruelty, or that he ejected the Respondent from the home or that he threatened her.

8. During the hearing, the Petitioner told the court that it was not possible for him to provide Kshs.91,000/- for her monthly up keep since he had lost his job.  He asserted that they already had a case for maintenance in the Children’s court where issues of maintenance would be discussed. He confirmed that although he is not working currently, he has been to depositing Kshs.5000/= in his wife’s account for the children’s food and paying their school fees.

9. The Petitioner stated that due to the aforesaid acts of cruelty and desertion he and the Respondent could not continue to hold out as husband and wife.  He, therefore, asked the court to dissolve the marriage between him and the Respondent.  He confirmed that this Petition had not been presented or prosecuted in collusion with the Respondent, nor had he connived or condoned the acts of cruelty, and desertion complained of.

10. The Respondent testified on 31st July 2015 and stated that she opposed the petition on grounds that she was too young to be divorced and that no man would marry her since she has two children now.  She contended that the reason why she was left the matrimonial home for her parent’s home and never came back, was because the Respondent was abusive and did not provide for food, security or school fees for the children. She denied that she was hostile when the Petitioner tried bring her and the children back and asserted that he never went after them.

11. The Respondent told the court that she took the Petitioner to the Children’s court, to force him to provide for the children.  She denied that there was interference from her family as alleged by the Petitioner or that she denied him love and companionship.  In her oral evidence she prayed to be awarded Kshs.350. 000/= for maintenance, since she had been informed by one of the teachers of her children that the Petitioner now lives and works in the U.S.A.  The said teacher was not called as a witness to state the source of her information.  In short there was no evidence to counter the Petitioner’s assertion that he lost his second job and was therefore not in a position to maintain the Respondent.  She prayed that the petition for divorce be dismissed.

12. I have perused the grounds of the amended Petition the Answer thereto and the Cross-petition,  together with the evidence of the Petitioner and the Respondent as tendered in court.  The evidence shows that the parties have lived apart for the last three years and there has been no meaningful attempt at reconciliation.  I note, however, that although the Respondent opposed the petition, she did admit on cross-examination that she was no longer in love with her husband and that there had been no companionship or enjoyment of conjugal rights in the last three years.  Her own words were that “I cannot call ours a happy marriage.  He does not love me anymore.  There is actually no reason for me to remain in this loveless marriage anymore.”

13. From the foregoing it is evident that the marriage celebrated between the parties herein on 1st February 2008 has irretrievably broken down and cannot be salvaged. In the premise I order as follows:

(a) That the marriage celebrated between the Petitioner and Respondent at the Registrar’s office in Nairobi on 1st February 2008 is hereby dissolved.

(b) That Decree nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this judgment.

(c) There shall be no orders as to costs.

SIGNED DATEDandDELIVEREDin open court this 1st day of October 2015.

…………………

L. A. ACHODE

JUDGE