REPUBLIC OF KENYA. IN THE HIGH COURT OF KENYA AT KITALE. DIVORCE CAUSE NO. 1 OF 2013. N M M :::::::::::::::::::::::::::::::::::::::::::: PETITIONER. VERSUS S J C ::::::::::::::::::::::::::::::::::::: RESPONDENT. J U D G M E N T. This is the petition of N MM, for the dissolution of her marriage with SJC, on grounds of cruelty and adultery. She avers that they underwent a statutory marriage on the 1st December, 2006 within the county of trans Nzoia but the same has not been a happy marriage due to the husband's (respondent) cruelty and adultery in that he is abusive and occasionally hurls insults at her calling her a prostitute and has on several occasions assaulted her. That, he occasionally left her with no food and other provisions and in the month of October, 2007, he violently assaulted her and forcibly took possession of her household goods including her matrimonial bed with the assistance of his mother such that she had to flee to her parent's home for safety. That, since the same year (2007) he lives and has had sexual intercourse with a woman referred to as Mama Seith resulting in the birth of two issues. The petitioner contends that all efforts to resolve their marriage issues have been frustrated by the respondent to the extent that she has suffered mental anguish and the marriage has irretrievably broken down. In his answer to the petition, the respondent denied all allegations made against him by the petitioner and contended that they had been husband and wife upto the year 2008 when the post election violence erupted and therefore the issues pertaining to the year 2007 did not arise as alleged. That, at no time has he with the assistance of his mother assaulted the petitioner nor forcibly taken possession of her household goods and causing her to flee from the matrimonial home. That on the contrary, it was the petitioner who in October, 2008 deserted the matrimonial home and in the process collected all household goods and went to live at an unknown place while he (respondent) was working in Endebess. The respondent further contended that while deserting the matrimonial home, the petitioner took way his two computers, three printers, one laminator and one binding machine. That, his attempts to settle the matter was ignored by the petitioner's parents only for him to later learn that the petitioner was attending a college without his consent thereby causing him mental anguish. At the hearing of the petitioner, both the petitioner and the respondent testified and each reiterated their respective averments and contentions. None of them called an independent witness. They each blamed one another for the breakdown of their marriage relationship. The petitioner accused the respondent of cruelty and adultery while the respondent accused the petitioner of desertion. Both, however, seem to be in agreement that their marriage has broken down and cannot be salvaged.
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Be that as it may, the parties were married under the Marriage Act (Cap 150 LOK) thereby falling under the Matrimonial Causes Act (Cap 152 LOK) which provided under section 8 (1) for grounds of petition for divorce or dissolution of a marriage. Such grounds include adultery, desertion and cruelty. These are the factors that have been invoked in this petition and the answer thereto. The burden of proving adultery and cruelty if not desertion lay with the petitioner in as much as she had accused the respondent of such matrimonial offences. She also accused him of desertion during the hearing of the petition even though the respondent averred that she was the one who actually deserted the matrimonial home. However, there was no cross-petition by the respondent. Cruelty is a question of fact and degree dependant on the circumstances of each individual case. It is however, defined as a wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. The court must be satisfied that the conduct complained of is sufficiently grave and weighty to warrant the description of being cruel and that such conduct has caused injury to health or reasonable apprehension of such injury (see, DM VS. TM (2008) 1 KLR (G & F) 3). Herein, allegations of cruelty made against the respondent have not been established by the petitioner to the satisfaction of this court. Foul and vulgar language such as calling one a prostitute may not by itself amount to cruelty unless it was shown to affect one's health. The allegation of assault was not supported by any medical report nor was there any evidence to support the allegation that the petitioner was on several occasions denied food and other provisions by the respondent. With regard to adultery, it is apparent that the suspicion cast upon the respondent by the petitioner was based on alleged telephone calls made to the respondent by various women not known to the petitioner and the alleged cohabitation of the respondent and a woman known as “Mama Seth or Seith” leading to the birth of two issues. These factors were not established by cogent evidence to establish guilty inclination or passion on the part of the respondent or an opportunity by him to commit adultery. The evidence required to establish adultery must be more than mere suspicion and opportunity and the standard of proof required is on a higher side. Herein, there were no cogent surrounding circumstances to infer adultery such as confessions and admissions, improper behaviour, undue familiarity or suspicious circumstances. In particular, there was no evidence of the respondent's alleged cohabitation with the said “Mama Seth” resulting in the birth of two issues. There was no evidence that the two issues belong to the respondent. The allegation of desertion on the part of the respondent was more or less an afterthought as it was not pleaded by the petitioner in the petition.[ In sum, the petitioner has failed to establish to the required standard the allegations of cruelty and adultery made against the respondent. However, it has all along been apparent that the marriage between the two has irretrievably broken down such that any attempt to give them time to resolve their marital problems by sustaining it (marriage) would cause both of them untold anxiety and/or psychological torture. It is in their own interest and the interest of justice that the marriage be dissolved and they be allowed to move on with their respective lives and because the marriage did not produce any issues, they have nothing to worry about. Consequently, the petition succeeds in terms of prayer (a). Each party to bear own costs. A “decree nisi”
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shall forthwith issue to be made absolute within a period of three (3) months instead of the prescribed six (6) months. Ordered accordingly. [Delivered and signed this 5th day of June, 2014.] J.R. KARANJA. JUDGE.
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