https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6066

AOE v ACKE (Civil Appeal E009 of 2023) [2026] KEHC 6066 (KLR) (Family) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 6066 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Appeal E009 of 2023 HK Chemitei, J May 7, 2026 Between AOE Appellant and ACKE Respondent Judgment 1.This judgment relates to the memorandum of appeal dated 24th January, 2023 filed by the Appellant, AOE, based on the grounds that:-1.The learned Trial Magistrate misdirected herself and relied on the wrong principles in reaching her decision.2.The learned Trial Magistrate erred in fact and in law by failing to consider the evidence adduced in court by the Appellant, and thereby arriving at an erroneous decision in respect of the matters that are the subject of this appeal.3.The learned Trial Magistrate erred in fact and in law by basing her judgement on the contradictory evidence of the Respondent.4.The Learned Trial Magistrate erred in fact and in law by dissolving the marriage despite not being persuaded that the ground of cruelty had been established.5.The Learned Trial Magistrate erred in finding that the love shared by the parties has been swept away by the wind and the same cannot be salvaged.6.The learned Trial Magistrate erred in fact and in law by failing to consider all the issues presented for determination, including the Appellant’s intentions to salvage the marriage, contrary to the evidence adduced in court.7.The Learned Magistrate took into account extraneous considerations and thereby failed to uphold the sanctity of the parties’ marriage.8.That the judgment of the learned Trial Magistrate was against the weight of the evidence. 2.The Appellant prays for orders that:1.This appeal be allowed.2.The judgment and decree of the Honourable Senior Resident Magistrate, M.W. Murage delivered on 9th December, 2022 be set aside.3.The parties herein be granted an opportunity to salvage their marriage.4.The court grants any further orders which would be justifiable in the circumstances. 3.The Appellant has filed written submissions dated 17th September, 2025 and the Respondent has filed written submissions dated 25th April, 2025. Background 4.The genesis of this application is the Judgment in Milimani Chief Magistrate Court Divorce Cause No. E335 of 2022: ACKE versus AOE, delivered by Hon. M. W. Murage (Senior Resident Magistrate) on 9th December, 2022. 5.In the judgment, the trial court considered the evidence presented by both parties regarding the dissolution of their marriage. The court noted that the Petitioner had sought divorce on grounds of cruelty, alleging that the Respondent had become emotionally unavailable, denied her affection and conjugal rights, excluded her from important family and financial decisions, failed to involve her in the management of jointly acquired property and subjected her to verbal abuse, humiliation, intimidation and prolonged communication breakdowns. 6.She further complained that the Respondent disregarded significant family occasions, ignored her emotional needs and frustrated reconciliation efforts, thereby causing fear, anxiety and emotional distress. 7.The court also summarized the oral testimony adduced during the hearing. The Petitioner adopted her witness statement and maintained that despite attempts at reconciliation, the marriage could not be salvaged. 8.On his part, the Respondent adopted his statement and insisted that he had involved the Petitioner in family decisions, did not believe the marriage had irretrievably broken down and had sought counselling and intervention from various persons in an effort to save the union. He downplayed some of the complaints raised, including the issue of conjugal rights and contended that reconciliation remained possible. 9.In determining the dispute, the learned Magistrate referred to Section 65 of the Marriage Act, 2014, which sets out the grounds upon which a Christian marriage may be dissolved, including cruelty and irretrievable breakdown of the marriage. 10.The court further relied on the decision in William v William (1964 AC) regarding the legal threshold for cruelty, observing that the conduct complained of must be grave enough to cause injury or a reasonable apprehension of injury to health. After evaluating the evidence, the court found that the Petitioner had not sufficiently proved the ground of cruelty. 11.Nevertheless, the court held that although cruelty had not been established to the required standard, the marriage itself had effectively collapsed. The Magistrate observed that the relationship existed only formally, that the affection between the parties had dissipated completely and that reconciliation efforts had proved futile. 12.Consequently, the court concluded that the marriage could no longer be salvaged and proceeded to dissolve it. A decree nisi was issued to become absolute after thirty days, with each party ordered to bear their own costs. Analysis and Determination 13.I have carefully considered the memorandum of appeal and the rival submissions thereto and address them as follows: 14.This being a first appeal, the court is enjoined to re-evaluate and re-analyze the entire evidence on record and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 15.The guiding principles are well settled, including the duty to subject the impugned decision to fresh scrutiny and determine whether the trial court misdirected itself in law or fact as was established in Mursal & Another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) where the court stated as follows: “First appellate court is mandated to re – evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.” 16.From the record of appeal, the parties contracted a civil marriage at the Attorney General’s Chambers on 27th August, 2014 and later solemnized a church wedding at Christ the Teacher Catholic Church, Kenyatta University main campus, Nairobi County on 21st November, 2014. Their union was blessed with one daughter born in 23rd April, 2019, while a son born in 10th August, 2017 died shortly after birth due to prematurity. 17.The Respondent filed for divorce on grounds of cruelty, emotional neglect, denial of affection and conjugal rights, exclusion from family and financial decision-making, verbal abuse, humiliation, intimidation and persistent communication breakdown. 18.She alleged that the Respondent spent excessive time working, exercising and studying to the detriment of the marriage, failed to support her emotionally during difficult periods and ignored repeated attempts at reconciliation. She further contended that the Respondent unilaterally managed family investments and finances, including rental income from jointly connected property, registration of motor vehicles and plans for construction of a matrimonial home in Kilifi. 19.The Respondent asserted that the Appellant demeaned her before others, described her as mentally unstable, threatened her and continuously criticized her efforts within the marriage. According to her evidence, the cumulative effect of these acts caused emotional suffering and rendered the marriage irretrievably broken down. 20.In support of the petition, the Respondent filed a witness statement and affidavit reiterating the allegations of cruelty and emotional abandonment. She maintained that despite interventions by family members, church leaders and counsellors, the Respondent failed to meaningfully address the marital difficulties. She narrated that reconciliation efforts held between 2020 and 2022 were unsuccessful, resulting in the parties’ separation. The Petitioner also produced documentary evidence including the marriage certificate and averred that she had neither condoned nor connived in the alleged conduct. 21.The Appellant opposed the petition and filed an answer and cross-petition denying the allegations of cruelty. He contended that he had made significant efforts to preserve the marriage, including relocating work stations to live with the Respondent adjusting his routines to accommodate family life and actively participating in childcare and household responsibilities. 22.He explained that his demanding professional obligations as a medical doctor, particularly during the COVID-19 pandemic and involvement in vaccine and treatment trials, accounted for some of the conduct complained of. He denied withholding conjugal rights, verbal abuse, emotional neglect or excluding the Respondent from financial matters asserting instead that the Respondent had access to family financial records and jointly enjoyed benefits from matrimonial investments. 23.The Appellant further challenged the Respondent’s account regarding family finances and property acquisition. He stated that the Kilifi construction project was based on land purchased prior to the marriage and that the Petitioner’s financial contribution towards the architectural plans and permits was comparatively minimal. He also maintained that the motor vehicles registered in his name were so registered for purposes of obtaining affordable insurance through his employment and that the Petitioner continued to enjoy unrestricted access to them. 24.Regarding household expenses, he averred those costs were shared substantially in his favour, including rent which he allegedly met exclusively. He denied insulting or humiliating the Petitioner and insisted that he remained committed to reconciliation and restoration of the marriage. 25.The Appellant relied on witness statements and affidavits from domestic workers and other persons who had interacted with the family. The said witnesses generally deposed that they had not observed the Appellant verbally abusing, belittling or mistreating the Petitioner. 26.Additional evidence was tendered through an affidavit sworn by Rev. Lance Nadeau, who confirmed involvement in reconciliation efforts between the parties and stated that meetings were held to discuss possible reconciliation and arrangements regarding access to the parties’ child. 27.The Appellant also annexed financial records, invoices, bills of quantities, receipts and correspondence intended to demonstrate his financial contributions to the marriage and family projects, including proposed construction works in Kilifi. 28.The trial court ultimately found that although the allegations of cruelty had not been proved to the required standard, the marriage had irretrievably broken down and could no longer be salvaged. Consequently, the court dissolved the marriage and issued a decree nisi to become absolute after the statutory 30 days period. 29.The present appeal challenges that determination.The main issue arising for determination in this appeal is whether the learned trial Magistrate erred in dissolving the parties’ marriage after finding that the ground of cruelty had not been proved to the requisite legal standard. Closely intertwined with that issue is whether the evidence on record, nevertheless, established that the marriage had irretrievably broken down within the meaning of Section 65 of the Marriage Act, 2014. 30.The Appellant’s grievance is essentially that the trial court contradicted itself by rejecting the pleaded ground of cruelty while simultaneously proceeding to dissolve the marriage. 31.He further faults the magistrate for allegedly disregarding his evidence on reconciliation and for failing to uphold the sanctity of marriage. 32.However, upon re-evaluation of the record, this court is unable to agree with the Appellant’s contention. While the learned magistrate indeed found that cruelty, as specifically pleaded, had not been proved to the threshold contemplated in William v William (1964 AC), the court was nonetheless entitled to consider the broader factual circumstances surrounding the parties’ relationship in determining whether the marriage had become irretrievably broken down. 33.The evidence before the trial court demonstrated prolonged marital discord characterized by emotional detachment, persistent communication breakdown, separation, failed reconciliation efforts and deep incompatibility between the parties. 34.The Appellant acknowledged that the parties had separated since June 2021 and that intervention by family members, clergy and counsellors had not yielded reconciliation. Although he maintained optimism that the union could still be salvaged, the objective evidence disclosed a relationship that had ceased to function as a consortium of marriage. 35.The Respondent consistently maintained that she no longer wished to continue in the marriage and described the relationship as emotionally exhausting and psychologically harmful. The record further reveals that despite counselling sessions, church intervention and family meetings extending over a considerable period, the parties remained estranged. 36.In matrimonial causes, the court is not confined to assessing isolated incidents of misconduct alone, but must evaluate whether the totality of the circumstances demonstrates the collapse of the marital union. In this case, the cumulative evidence sufficiently established that the marriage had lost its substance and existed merely in form. 37.The Appellant’s argument that the trial court failed to consider his efforts toward reconciliation is not borne out by the record. The impugned judgment expressly acknowledged the Respondent’s attempts to preserve the marriage, including counselling initiatives and engagement of religious leaders. 38.Nevertheless, reconciliation cannot be imposed by the court where one spouse has unequivocally withdrawn emotional commitment to the union and where repeated efforts at restoration have failed. The Marriage Act recognizes irretrievable breakdown as an independent basis for dissolution and the court’s duty is not to perpetuate a marriage that has demonstrably ceased to serve its essential purpose. 39.While the sanctity of marriage is a constitutional and social value deserving protection, the institution cannot be preserved through compulsion where mutual trust, companionship, affection and cohabitation have substantially collapsed. The learned magistrate therefore cannot be faulted for concluding that the parties’ relationship had deteriorated beyond repair notwithstanding the Respondent’s desire for reconciliation. 40.Further, this court finds no basis for interfering with the factual findings of the trial court. The learned magistrate properly directed herself on the applicable law, evaluated the rival testimony and documentary evidence and arrived at a conclusion supported by the record. 41.The alleged contradictions in the Respondent’s evidence and the affidavits of domestic workers did not sufficiently displace the Petitioner ’s consistent account of emotional estrangement and prolonged marital dysfunction. 42.Equally, the financial records and annexures produced by the Respondent largely addressed contribution to family expenses and matrimonial projects, but did not negate the evident collapse of the marital relationship itself. Ultimately, the trial court correctly appreciated that the failure to prove cruelty strictly did not preclude a finding that the marriage had irretrievably broken down. 43.Consequently, I find that the appeal lacks merit and the judgment and decree of the trial court dissolving the marriage is hereby upheld. 44.Each party to bear its own costs. DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 7TH DAY OF MAY 2026.H K CHEMITEIJUDGE