m v E.J.L. [2011] KEHC 675 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

DIVORCE CAUSE NO. 14 OF 2010

M :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

=VERSUS=

E.J.L. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

JUDGMENT

In his petition filed on 15th October, 2010, M.N.L.(hereinafter, “the petitioner”) seeks dissolution of his marriage to his wife e.j.l. , (hereinafter “the respondent”) on the grounds of cruelty, adultery and desertion. In his petition, he states that the respondent has willfully denied him conjugal rights; that the respondent received him with spite and hostility when he visited; that she has refused to talk to him and has, on diverse dates, used threatening language against the petitioner. With regard to adultery, he states that the respondent has committed several acts of adultery with other men during the subsistence of the marriage; that she is now expectant yet they have not been intimated for two years.

With regard to desertion, he states that the respondent has refused and/or neglected to visit him in the U.S.A. for over two years. When the respondent was served with the petition, she filed no answer to the petition and when the petition came up for hearing on 24th October, 2011, it proceeded ex-parte. The petitioner testified as follows:-

He holds both Kenyan and U.S.A. passports. He had married the respondent on 7th January, 2006, under the African Christian Marriage and Divorce Act (Cap 151 Laws of Kenya) and had briefly cohabited at K[....] in Uasin Gishu District of the Rift Valley in the Republic of Kenya. The petitioner then went back to the U.S.A. where he stayed until 26th December, 2007. He did not find the respondent at the Airport or at his home in K[...]. Before he left for the U.S.A. on 13th January, 2008, he had met the respondent only thrice.

The petitioner made another visit to Kenya on 17th December, 2010 and found that the respondent had given birth yet they had not been intimate for over two years. He concluded that the respondent had been adulterous.

In the petitioner’s view, his marriage with the respondent has irretrievably broken down and should be dissolved.

Having considered the uncontested evidence adduced before me, I find that the petitioner has established the grounds of cruelty and adultery. The cruelty comprised the respondent denying the petitioner his conjugal rights and refusing to communicate with him. The petitioner apprehended mental anguish. Denial of conjugal rights, in my view, is a grave form of cruelty which was weighty and would cause extreme emotional injury and  cause danger to the petitioner’s life.

With regard to adultery, the birth of a child to the respondent who had not been intimate with the petitioner, obviously demonstrated that the respondent had committed adultery. In the premises, I find that the petitioner has proved to the required standard the grounds of cruelty and adultery. The marriage between the petitioner and the respondent has irretrievably broken down. It cannot be saved. I will therefore allow the petition and order that the petitioner’s marriage to the respondent be and is hereby dissolved. Decree nisi should issue forthwith. The same shall be made absolute after one (1) month thereafter.

I make no order as to costs.

Orders accordingly.

DATED AND DELIVERED AT ELDORET

THIS 2ND DAY OF NOVEMBER 2011

F. AZANGALALA

JUDGE

Read in the presence of:-

Mr. Chaluget holding brief for Mr. Terer for the Petitioner.

F. AZANGALALA

JUDGE

2/11/2011