L.J.T v H.K.T & D.L [2011] KEHC 1183 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

DIVORCE CAUSE NO. 1 OF 2004

L.J.T ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

H.K.T::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

D.L:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::CO-RESPONDENT

JUDGMENT

In her petition filed on 23rd March, 2004 L.J.T (hereinafter “the petitioner”) seeks dissolution of her marriage to her husband, H. K. T (hereafter “the respondent”) on two grounds of adultery and cruelty. At the trial however, she abandoned the ground of adultery and led evidence on the ground of cruelty. In her particulars of cruelty, the petitioner states, interalia, that the respondent beat her several times and on 1st May, 1999 chased her with a knife. In those premises she contended that her marriage to the respondent had irretrievably broken down and should be dissolved.

Although the petitioner had joined, one D.L, as a co-respondent, she withdrew the cause against her.

The respondent filed an answer to the petition and also cross- petitioned for divorce on two grounds of cruelty and desertion. He denied the cruelty alleged in the petition and pleaded that his marriage be dissolved notwithstanding any adultery on his part.

The petition came up for hearing before me on 5th July, 2011. Only the petitioner testified. In her oral testimony in court she stated in the main as follows:-

They married under the African Christian marriage and Divorce Act (Cap 150 Laws of Kenya) on 7th December, 1996. She produced a  copy of their marriage certificate as “P EX.1”. They lived happily initially but in 1998, the marriage started experiencing difficulties which led to her petitioning for divorce in the year 2000.   They reconciled and resumed cohabitation. She therefore withdrew the petition she had earlier filed. She produced as P.EX.2 a letter applying to withdrew  the said petition. The happiness did not however last, because in 2003, she lost a pregnancy while at her parents’ home. The respondent was not concerned with her tragedy and never even condoled her.

The marriage deteriorated and sexual relations ceased. She added that since the year 2003, the respondent had had no sexual relations with her. She then reiterated the particulars of cruelty in her petition. In those premises, the petitioner testified that her marriage to the respondent had irreparably and irretrievably broken down and should be dissolved.

On cross-examination, the petitioner admitted that in December, 2006 she had given birth to a child who was not the respondent’s. She further admitted that in 1998 she had taken various items from the matrimonial home.

The respondent did not testify nor did he call any witness.

Having considered the evidence adduced before me, I am satisfied that the petitioner has satisfactorily demonstrated the ground of cruelty. In any event the respondent did not deny the cruelty demonstrated by the petitioner. In addition to the beatings the respondent administered on the petitioner and chasing her while armed with a knife as stated in the petition, the respondent’s failure to condole the petitioner when she lost her pregnancy was callous. Besides, the respondent has had no sexual relations with the petitioner since 2003. In my view the respondent is guilty of misconduct of a grave and weighty nature. The petitioner apprehended real injury to her health. This marriage in my view has irretrievably broken down.

In the end the marriage between the petitioner and the respondent is hereby dissolved. Decree nisi shall issue forthwith and the same to be made absolute after one month.

Each party shall bear his/her own costs.

Orders accordingly.

DATED AND DELIVERED AT ELDORET

THIS 26TH DAY OF SEPTEMBER, 2011

F. AZANGALALA

JUDGE

Read in the presence of:

Mr. Kirwa for the Respondent and

Mr. Misoi Hold Brief for Mr. Koros for the Petitioner.

F. AZANGALALA

JUDGE

26TH SEPTEMBER, 2011