C M S v S W S

High Court, at Eldoret January 25, 1989

Aganyanya J

Civil Appeal No 4 of 1988

(Appeal from the Judgment of the Senior Resident Magistrate’s Court at

Eldoret (BN Olao Esq RM) in Civil Civil Suit No 18 of 1987)

Family law - divorce – matrimonial offence – of cruelty – what the law requires – standard of proof – ingredients of cruelty.

This appeal arose out of the dismissal of the appellant’s petition for divorce on grounds of cruelty. The appellant in his petition listed 15 instances of cruelty upon which he was seeking the dissolution of the marriage. It was shown by evidence that the respondent’s acts led to severe depression causing him to go for medical treatment.

Held:

1. In matrimonial cases cruelty is a serious charge to make and the law requires that it should be proved beyond reasonable doubt.

2. The conduct complained of must be looked at as a whole and it must be looked at in the law of the sort of people the parties are. The impact of the conduct complained of must be judged and viewed as a whole on the personality of the complaining party.

3. The question in cases grounded on cruelty is whether the acts or conduct of the party charged are cruel according to the ordinary sense of that word rather than whether the party charged was himself or herself a cruel man or woman.

Appeal allowed.

Cases

1. Mulhouse (formerly Mulhausen) v Mulhouse (formerly Mulhausen) [1964] 2 All ER 50; [1964] 2 WLR 808

2. Windeatt v Windeatt [1962] 1 All ER 776

3. Meme v Meme [1976] KLR 13

4. Gollins v Gollins [1964] AC 644; [1963] 2 All ER 966; [1963] 3 WLR176

5. Williams v Williams [1964] AC 698

Statutes

No statutes referred.

Advocates

Mr Havelock for the Appellant.

Mr Khamati for the Respondent.