W K v B A A [2017] KEHC 886 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

DIVORCE CAUSE NO. 8 OF 2010

W K....................................................... PETITIONER

VERSUS

B A A.…………….…...…………..…...RESPONDENT

JUDGEMENT

1. This is an old matter. The Petitioner W K filed this Petition dated 19. 10. 09 seeking the dissolution of her marriage to B A A, the Respondent. The Respondent having been duly served filed his Answer to Petition and Cross Petition dated 3. 6.10 in which he too sought the dissolution of the marriage.

2. The Petition was disposed of by way of vive voce evidence. The undisputed facts of the case are that the marriage of the parties herein was solemnised at the Registrar’s office in Mombasa on 10. 10. 80. The couple have 2 adult children. The Petitioner is a paediatrician while the Respondent is an engineer.

3. The Petitioner told the court that she married the Respondent in 1980 and they have 2 adult children who have families of their own. They started a family business and acquired some property together. Mistrust and suspicion set in that led to the end of the business. The parties are involved in both civil and criminal cases against each other. They separated in January 2008. There was an attempt in 2008 by the Petitioner’s elder brother to reconcile the parties but it did not bear fruit. Since they separated, the parties not resumed cohabitation. The marriage herein has irretrievably broken down and there is no hope of salvaging the same. The Petitioner prayed that the marriage be dissolved.

4. The Respondent did not attend Court for the hearing and his counsel who was present closed the case of the Respondent.

5. The grounds upon which a civil marriage such as the marriage herein may be dissolved are stipulated in the Marriage Act, 2014 at Section 66(2). These include:

(a) adultery by the other spouse;

(b) cruelty by the other spouse;

(d) desertion by the other spouse for at least three years; or

(e) the irretrievable breakdown of the marriage”

6. It is quite apparent that the marriage herein is no more. Both parties have in their pleadings sought the dissolution of the same. Since 2008 when they separated they have not resumed cohabitation. They are both involved in criminal and civil cases against each other. With the enactment of the Marriage Act 2014, the Court no longer requires parties to adduce evidence sufficient to prove the commission of a matrimonial offence by one spouse against the other. All that a party needs to do is satisfy the Court that the marriage has irretrievably broken down. This was well articulated by Odero, J. in C.W.L v H.N [2014] eKLR thus:

“Prior to the Marriage Act 2014, the court would have required either the petitioner or the respondent to adduce evidence sufficient to prove the commission of a matrimonial offence by one spouse against the other. However in the Marriage Act 2014 the situation is vastly different. All the court requires is proof that the marriage has irretrievably broken down.”

7. From the material before me and the testimony of the Petitioner, I am satisfied that the marriage herein has irretrievably broken down. In view of the foregoing, I do pronounce a decree of divorce and order that the marriage between the Petitioner and the Respondent solemnised at the Registrar’s office in Mombasa on 10. 10. 80 be and is hereby dissolved. Decree nisi to issue and the same to be made absolute within 1 month. Each party to bear own costs.

DATED, SIGNED and DELIVERED in MOMBASA this 1st day of December 2017

___________

M. THANDE

JUDGE

In the presence of: -

…………………………………………………………… for the Petitioner

……………………………………………………….. for the Respondent

……………………………………………………..…….. Court Assistant