M.N.M v E.M.M [2008] KEHC 2023 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Divorce Cause 12 of 2005

M.N.M  …………………………………..  PETITIONER

-  Versus  -

E.M.M  …………………………….  RESPONDENT

J U D G M E N T

The petition for divorce herein was dated 14th February, 2005, and filed in court on 15th February, 2005.  By that petition, the Petitioner prays for orders that the marriage between the Petitioner and the Respondent be dissolved; that the Petitioner be granted custody of the children of the marriage; that there be an order as to maintenance; that there be orders as to costs; and that this Honourable Court be pleased to make further and or any other orders as may be just.

Although the Respondent was duly served with a certified copy of the Petition and Notice of the Petition on 9th March, 2005, and duly acknowledged service, she did not file her Notice of Appearance and Memorandum of Appearance within the required period.  The hearing of this petition therefore proceeded ex parte.

During the hearing, the Petitioner gave sworn testimony, and his evidence was almost a replica of his pleadings.  He testified that the parties herein contracted the marriage in the Office of the Registrar of Marriages at Mombasa on 30th April, 1992.  He produced the Marriage Certificate as his exhibit No.1.  After the marriage, the couple cohabited at Mombasa.  Their union was blessed with two children, M.N and W.N, aged 14 and 12, respectively, at the time of the hearing of the petition.

According to his evidence as well as his pleadings, the problems between the couple started soon after the marriage in 1992.  There were the usual disagreements between spouses, but after some time the Respondent started deserting the Petitioner and the children.  In August, 1993, the Respondent deserted the matrimonial home for six months leaving behind their daughter, who was about 18 months old, under the Petitioner’s care.  On departure, she locked the child in the house.  Two years later, in 1995, she deserted the matrimonial home again when their second child was about 1 year old, and stayed away for about 9 months.  Another three years later, in 1998, she took off yet again, this time never to come back.  By this time, their elder child had already gone to school.  Both the Petitioner and the children missed her.

One morning as the Petitioner took the older child to school, he forgot to lock the door leading to the balcony as the couple were living on the 1st floor upstairs.  When the younger child noticed that the Petitioner was not around, he went out and climbed on the balcony.  He fell down and crushed onto the concrete on the ground below and became unconscious.  The Petitioner rushed the child to Bandari clinic from where he was referred to Aga Khan Hospital.  He was admitted to the Hospital’s Intensive Care Unit where he remained for about five days, and thereafter transferred to the general ward where he stayed for three weeks.  Although the Respondent knew that the child was hospitalized, she never went to visit him even once.  Her departure from the matrimonial home traumatized the Petitioner and the children.

The Petitioner’s efforts to reconcile with the Respondent went begging.  But the last straw was the Respondent’s failure to visit the child in hospital.  For these reasons, the Petitioner prays for orders that the marriage between him and the Respondent be dissolved; and that the Petitioner be granted the custody of the children.  He left the issue of costs to the court.

I have considered the pleadings and the Petitioners uncontroverted evidence in this matter.  The Petitioner accuses the Respondent of desertion.  Under Section 8(1) of the Matrimonial Causes Act, Cap 15 of the Laws of Kenya, a husband or wife who voluntarily and without reasonable cause leaves the matrimonial home against the will of the other spouse for a period of at least three years with the intention of permanently ending the cohabition is guilty of the matrimonial offence of desertion.  In this Divorce Cause, the Respondent left the matrimonial home in 1998.  She never came back.  The Petitioner’s attempts to effect a reconciliation bore no fruits.  From the year of her departure to the date of filing this petition in February, 2005, was a period of more than six years.  There is no prospect that she will ever return to that home.

Although the Petitioner has not complained specifically about cruelty, the Respondent’s conduct towards her own children leaves a lot to be desired. What caring mother leaves her child locked alone in a house without caring what time the father would come back home?  What caring mother fails to visit her own child in hospital for nearly a month?  Such conduct depicts the Respondent as a callous and heartless mother, which is most wanting and unbecoming of any mother. It is mentally cruel to both the Petitioner and the children of the marriage, and is bound to subject them to untold mental anguish and suffering.

The Petitioner testified in a straight and forthright manner, and I believe that what he told the court was true.  The Respondent is guilty of desertion.  There is no prospect that the spouses to this marriage will reconcile any time soon, and for that reason I also find that this marriage is irretrievably broken down.  The Petitioner is therefore entitled to a divorce as prayed.

I accordingly make the following orders –

1.  The marriage solemnized at the Registrar’s Office in

the Mombasa District of the Coast Province of Kenya

between the Petitioner and the Respondent herein is

hereby dissolved.

2.  Decree nisi to issue.

3.  Decree nisi to become absolute upon application

after six months.

4. The custody of the children of the marriage is

granted to the Petitioner.

5.   The Respondent to have access to the children at

such times and places and upon such terms as may

be agreed upon between the Petitioner, the

Respondent and the children.

6.   Each party shall bear its own costs of this divorce

cause.

Dated and delivered at Mombasa this 23rd day of May, 2008.

L. NJAGI

JUDGE