S T B v S W W [2018] KEHC 8587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

DIVORCE NO.  4 OF 2016

S T B …..…………..............................………PETITIONER

VERSUS

S W W  …………..……..............………….RESPONDENT

JUDGMENT

1. S T Bhas petitioned this court seeking that his marriage to S W W be dissolved. They married on 20th November, 2007 under The Marriage Act Cap. 150 (now repealed). Before celebrating that marriage they had co-habited together for four years.

2. The  children of the marriage are

( a)    R W Born on 6/9/1998.

This child was born by S W W before their co-habitation but later accepted as a child of the marriage by S T B.

(b)    E U born on 10th May, 2004.

(c)   L A born on 9th July 2008.

3. S T B stated in evidence that S W M began  desert the matrimonial home after the celebration of their marriage. He said that S W W would sometimes fail to return home for weeks. During that time of her disappearance he would not know of her whereabouts or well-being.  That he suspected she was having love affairs. S W W also began taking excessive alcohol.

4. On her return,  after long periods of absence, S T B  said  that

S W W would be rude and violent towards him.

5. As consequence of that life style of S W W they separated in 2011 and have not cohabitated together again since then. S T B was left with the children of the marriage.

6. On their separation S T B left S W W to run the family business, a small coffee shop in Nanyuki town. S W W however ran down that business within 2 years.

7. He said that after this petition was filed S W W, he believes, went out of the county. That one day S W W went to the family home and told the children that she was going out of the country.

8. S T B   filed a children’s custody matter before the Nyeri High Court and that court awarded him custody of the children of the family because S W W admitted that she could not take care of them.

9. S T B concluded his evidence by stating that what they have cannot be called a marriage since they had not lived under the same roof since the year 2011. He requested that the marriage be dissolved.

10. S T B by his evidence alleged that S W W had been cruel, in their marriage, and that as a consequence their marriage had irretrievably broken down.

11. There has not been definitive definition of the word cruelty. This  was recognized  by  Justice S J Chitembwe  in the case: K A S v M M K [2016]  eKLR where the Learned Judge adopted the following  the case by: Sir Charles  Newbold in Colarossi V Colagrossi [1965] E A where it  was held that:

“no comprehensive definition  of cruelty  has ever been  accepted as satisfactory- much  depends  on the habits  and circumstances of the matrimonial life  of the husband  and wife, their character, the normal mode of conduct  one to the other and the knowledge  which each has of the true intention  and feelings of the other. An essential element of every petition based on cruelty is, however, that the party seeking relief must prove actual or probable injury to life, limb or health. For this reason, it is seldom indeed that a decree is granted upon a single act of cruelty though, should that act be serious enough and result in injury, then the court will grant the decree.”

12. From the evidence of S T B it became obvious that S W W by disappearing from the family home for long periods of time without giving S T B any information of her whereabouts or well being. And on her return to the family home being violent to S T B. And engaging in excessive alcohol consumption, she was cruel to S T B. It was obvious to the court that S T B experience mental anguish as a result of S W W‘s behaviour.

13. It  is this court’s finding  that S T B proved that his marriage to S W W had  irretrievably broken down as provided under Section 66 (2) (e) and (6) (b) of the Marriage  Act No. 4 of 2014.

14. Accordingly these are the orders of the court:

(a) The marriage of STB and S W W celebrated on 20th November, 2007 is hereby dissolved.

A decree nisi shall issue and shall become absolute within 30 days.

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

Dated and Delivered at Nanyuki this 8th February, 2018

MARY KASANGO

Judge

Coram

Before Justice Mary Kasango

Court Assistant:  Njue/Maria Stella

Petitioner …………………………………………

Respondent …………………………………….

For petitioner …………………………………

For Respondent ………………………………

COURT

Judgment delivered in open court

MARY KASANGO

JUDGE