FZS v OAM (Divorce Cause E006 of 2024) [2024] KEKC 25 (KLR) (11 December 2024) (Judgment)
Neutral citation:
[2024] KEKC 25 (KLR)
Republic of Kenya
Divorce Cause E006 of 2024
IN Nyaboga, SRK
December 11, 2024
Between
FZS
Petitioner
and
OAM
Respondent
Judgment
1.The petitioner, a female adult residing and working for gain in Mogotio in Baringo County seeks from the Honorable Court for an order against the respondent that the marriage between the parties herein be terminated.
2.The petitioner’s grounds on her petition are that the respondent failed to fulfil his duties and responsibilities as a husband and father and that since the petitioner left her matrimonial home and went to reside with her parents, the respondent has never showed any interest in their marriage.
3.The petitioner and the respondent celebrated their marriage in according to Islamic law on 31/8/2013 in Mogotio within Baringo County in the Republic of Kenya.
4.The petitioner and the respondent after celebrating their marriage left Mogotio to reside in Makinon Road in Kwale County in the Republic of Kenya which is the home to the respondent and his family and they cohabited there as husband and wife and were blessed with one issue.
5.The petitioner and the respondent later moved to Voi County where the respondent got employed by Crown Bus at its booking office.
6.Due to the difficulties the petitioner was experiencing from the respondent, she decided to go back to her parents on December 2020 where she has been residing and running a food kiosk in order to make a living until instituting this suit.
7.The respondent was duly served vide Affidavit of Service dated 11/9/2024.
8.The matter came up for direction on 25/11/2024 and only the petitioner appeared and thus the matter was fixed for hearing on 4/12/2024.
9.During the hearing, the respondent neither appeared himself nor his advocate if he had any and thus the matter proceeded exparte.
10.The petitioner testified that she celebrated her marriage to the respondent in according to Islamic traditions in Mogotio in Baringo County on 31/8/2013.
11.She stated that after the marriage ceremony, they cohabited first as husband and wife in Makinon Road and lastly in Voi when she left to go and visit her parents in Mogotio.
12.While in Mogotio, the petitioner states that the respondent left his job in Voi and went back to stay with his relatives which made her not to return back to the respondent.
13.The petitioner stated that she realized after the marriage that the respondent had not prepared himself for the marriage as he was still dependent on his parents and other relatives.
14.She stated that during her stay with the respondent in Makinon Road, she used to dispute a lot with her in-laws.
15.The petitioner stated that she engaged the elders including her father who was then alive and the area imam in Mogotio who summoned the respondent but failed to appreciate.
16.The respondent stated that she has been forced to provide for herself together with the issue of marriage as the respondent has failed to take his responsibilities as a parent and husband.
17.She further stated that the respondent does not bother about the marriage as he has not cared for her and the minor and thus asked the Honorable Court to terminate the marriage.
Determination:
18.The objectives of marriage as mentioned by the Qur’aan inter alia are comfort, compassion and love between married couples as it states: “And among His signs is that He has created for you, from your selves, mates, that you may incline towards them and find rest in them, and He has engendered love and tenderness between you. Surely in this are signs for people who reflect.” 30:21
19.When all or some of the objectives of marriage are not being achieved, then one or both parties in a marriage might be finding harm in the relationship and as a result, the Law provides as stipulated by one of the major Islamic Jurisprudential Principle “ Harm/Evil must be removed”.
20.In getting rid of harm/evil, parties may utilize several methods like arbitration, mediation, conciliation and lastly termination of the marriage.
21.If both parties in this case had made appearance, the Court would have referred the matter to Court Annexed Mediation (C.A.M) or other forms of Alternative Justice System so that the parties may try settle their differences but it is only the petitioner who made appearance.
22.The respondent was served by court documents as proven by the Affidavit of Services but he made no response nor appearance which leads me to believe that he is not interested with the relationship to the petitioner.
23.The Qur’aan states: “And do not retain them (women) with the intention of harming them …” 2:231
24.The verse is in regard to men who have no interest with their wives but don’t divorce them but instead retain them intending to harm them by barring them from marrying men of their choices.
25.From that, I conclude that the respondent is not interested with the petitioner and thus order the following:a.That the petitioner herein be and is hereby divorced from respondent.b.That the respondent to surrender to the petitioner all her belongings which were in his possession when the petitioner last left Voi.c.That no order as to costs.
DATED, SIGNED AND DELIVERED IN NAKURU THIS 11TH DECEMBER 2024.IDRIS NYABOGASENIOR RESIDENT KADHIBefore:Court AssistantPetitioner