Nziku d/o Nalimu v. Mayila Kamanda, (PC). Civ. App. 21-D-68, 5/10/68, Biron , J.

Nziku d/o Nalimu v. Mayila Kamanda, (PC). Civ. App. 21-D-68, 5/10/68, Biron , J.

The appellant’s wife petitioned for divorce on the grounds of desertion. There were some quarrels, but every time the wife left the husband, he persuaded her to come back. Later on it appeared that the wife left the matrimonial home and went to live with be parents, alleging that the husband did not provide her with sufficient food. The husband’s case was that the wife had deserted him for two years, that he had made attempts to persuade her to return but she always gave excuses. Once she returned but again left him. The Primary Court held that the onus was on the husband to persuade his wife to return, and this the respondent failed to do. Divorce granted to the wife. On appeal to the District Court, the judgment was reversed.

            Held: It is not disputed that the wife physically left the matrimonial home. The desertion on which she based her petition could only be constructive desertion.  It may be true that the marriage has broken down, but that

In itself is not sufficient. The issue as to who divorces whom is determined by the fact as to whom was at fault. It has been fully established that the husband had made genuine efforts to persuade his wife to return. Therefore “it has by no means been established that it was the husband who was in desertion not the wife”. Appeal dismissed.