One of the grounds for divorce under Kenyan law is cruelty. However, this term is difficult to define and a quick assessment will show that divorce petitioners have their own ideas of what it means to be cruel in a marriage.
The courts have also avoided pinning this definition down.
“Courts have avoided formulation of an exhaustive definition of cruelty. Acts of cruelty, like acts of negligence in the law of torts, are said to be infinitely variable,” wrote Justice GBM Kariuki in 2012.
Cruelty, therefore, is subjective depending on the marriage in question, the parties to the petition and even the social context.
In a 2012 case, a Mombasa man listed cruelty as among the grounds for divorce, alleging that his wife had made an attempt on his life with rat poison and a knife. A woman from Lodwar claimed that her husband attempted to kill her, chased her out of their home and blamed her for the demise of three of their children.
In a petition filed in 2015, a wife deemed her husband cruel because he had “directed his attention to business and he had no time for the family. He was absent from home for long periods”. When he was with the family he was “constantly on phone on account to business communications”.
A petitioner in a 2016 case claimed that her husband’s alleged failure to inform her of children he sired before the marriage was cruelty.
He failed to attend a birthday party she had organised in his honour, the wife said, instead secretly attending his daughter’s mother’s funeral. It was later revealed that the woman in question had died long before.