[2023] KEMC 137 (KLR)
The court found that the marriage had irretrievably broken down, as evidenced by the parties' five-year separation, mutual antagonism, and unequivocal lack of intention to salvage the union. The court applied Section 65 of the Marriage Act, 2014, and relevant case law, holding that it cannot compel parties to remain...
Source-derived case information.
- Citation
- [2023] KEMC 137 (KLR)
- Parties
- Applicant: AN; Respondent: SG
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E158 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed; marriage dissolved; no order as to alimony; each party to bear own costs.
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Adultery, Cruelty, Irretrievable Breakdown, Alimony, Christian Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AN
Applicant
SG
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under the Marriage Act, 2014.
- 2 Whether the petitioner is entitled to alimony.
Ratio Decidendi
The court found that the marriage had irretrievably broken down, as evidenced by the parties' five-year separation, mutual antagonism, and unequivocal lack of intention to salvage the union. The court applied Section 65 of the Marriage Act, 2014, and relevant case law, holding that it cannot compel parties to remain married where there is no mutual desire to continue the union. The court was unable to make an award for alimony due to insufficient evidence regarding the parties' financial positions, as no affidavits, statements of means, or documentary proof were provided. Consequently, the court dissolved the marriage, issued a decree nisi to be made absolute in 30 days, made no order as...
Court Disposition
Petition for divorce allowed; marriage dissolved; no order as to alimony; each party to bear own costs.
Orders
- The marriage between the parties is dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
AN v SG (Divorce Cause E158 of 2022) [2023] KEMC 137 (KLR) (29 May 2023) (Judgment)
Neutral citation: [2023] KEMC 137 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E158 of 2022
JP Aduke, SRM
May 29, 2023
Between
AN
Petitioner
and
SG
Respondent
Judgment
1. The Petitioner filed the petition dated 21st January 2022 seeking a divorce on the grounds of adultery, cruelty and irretrievable breakdown of the marriage. Return of service on record shows that the respondent was served with the petition and annexures thereto. The respondent entered appearance and filed an answer to the petition. These proceedings proceeded defended.
2. The brief facts of the case are as contained in the petition and the answer to petition on record. In summary, AN and SG solemnized their marriage in Kenya on 11th December 2004 in Church in Kenya. Both parties are domiciled in Kenya. They have two issues together from the union. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:1. Adultery;2. Cruelty;3. Irretrievable breakdown of the marriage;
3. At the hearing thereof, the petitioner relied on the petition and pleadings on record as evidence in support of the petition for divorce. Notably, the petitioner averred that the contents of the petition remained true as at the date of the hearing. The petitioner prayed that the petition be allowed as prayed. The respondent equally testified and prayed for an order of divorce and alimony.
4. The issue for determination before this court is whether or not the marriage between the parties merits an order of divorce under The Marriage Act, 2014 (hereafter, the Act).
5. The applicable law is s.65 of the Act (dissolution of Christian Marriages) which provides that the court may grant separation or divorce on the following grounds:1. adultery by the other spouse;2. cruelty by the other spouse;3. exceptional depravity by the other spouse;4. desertion by the other spouse for at least 3 years;5. the irretrievable breakdown of the marriage.
6. I have considered the particulars of the grounds outlined in the petition and how those have contributed to the irretrievable breakdown of the marriage as contemplated under s.65 of the Act. I have also noted the length of physical separation of the couple herein (5 years to date), the levels of antagonism between the parties and relied on the reasoning of the court in JSM vs ENB[2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of para 10 of the Petition on lack of such intention. The reasoning of the court in ROK v MJB and TPH v NVS 2017 eKLR cannot be emphasized enough-“marriage is a voluntary union……this court cannot by any means order or compel the parties to remain married when the petitioner has categorically stated that she wants the same dissolved…” Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 21st January 2022 on the following terms:1. the marriage between the two be and is hereby dissolved.2. Decree nisi do issue to be made absolute in 30 days.3. I note that the Petitioner prayed for alimony to maintain herself. From the pleadings and list of documents available on record as at the date of writing this decision, I have not seen any affidavit or statement of means on the pecuniary positions of both parties. I have not seen any certified copies of any bank statements or pay-slips of the parties. I have not seen any documentary proof of the financial trail between the parties. I am therefore unable to ascertain whether or not the petitioner was wholly dependent on the respondent. I have also taken note that the parties have lived separately for 5 years preceding the filing of this petition. Consequently, I am unable to make a decision with incomplete information and make no award on this account.4. This being a family matter, each party to bear own costs.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY IN COURT AT NAIROBI THIS 29TH MAY 2023 AT 9. 30AMIn the presence of :Court Assistant: Benjamin KombeCounsel for the Petitioner-Counsel for the Respondent: