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Court dashes man’s hope to end 13 years marriage for a new wife

By Kamau Muthoni | June 15th 2020

Two different courts have refused to grant a man a divorce from his wife of 13 years so he could remarry.

Instead, the Magistrate's Court and the High Court are in agreement that the man should continue living with the woman he accuses of being cold and distant.

This is in stark contrast to recent rulings where courts have decreed that marriage is a contract between willing parties who cannot be forced to live together if love withers and dies.

From the case, it emerged that the couple identified as DKK and JWG were childless.

The man, DKK, moved to the Magistrate's Court in 2018 where he argued that their marriage could not be salvaged. He accused his wife of being uncaring, deserting their matrimonial home and cutting off all communication.

But JWG said her estranged husband had filed for divorce after she refused to break her marriage vows and leave him so that he could remarry. The wife argued that because they were married in church, the man had realised that divorce was the only way he could wed another woman without being accused of bigamy.

The lower court dismissed DKK's case on July 6, 2018 after finding that he had failed to prove the claims of desertion and cruelty.

Aggrieved, the man filed an appeal in the High Court where he argued that the magistrate had erred for not finding that his wife had left their home in 2015 and switched off her mobile phone, thus making it impossible for them to communicate.

He also faulted the magistrate for not finding that he had a right to remarry after falling out of love with JWG.

But the woman denied deserting her home, saying the few times she was away was either during business trips with her husband's knowledge, or whenever he kicked her out.

Justice Lucy Gitari heard that in 2017, the couple sought out family members who tried to help them resolve their differences. 

JWG testified that she always spoke to her bishop when her husband kicked her out of the house, adding that the cleric would reconcile them.

"The appellant is seeking for divorce due to his cruelty and constructive desertion as he is planning to engage in another marriage, which is not only a criminal offence but also a nullity in law,” said JWG.

Justice Gitari agreed with JWG by finding that her estranged husband could not prove the desertion claims. According to the judge, the couple would hold discussions when the woman left home and on her return.

"This is a clear indication that the marriage has not irretrievably broken down,” said Gitari, adding that DKK had also failed to prove that he had been denied conjugal rights and treated cruelly.

The court also found that the man's appeal was time barred.

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