[2023] KEMC 25 (KLR)
The court found that the petitioner had established the grounds for dissolution of the marriage under section 65 of the Marriage Act, 2014, specifically irretrievable breakdown and desertion. The evidence showed a lack of intention to salvage the marriage and a period of physical separation. The court emphasized...
Source-derived case information.
- Citation
- [2023] KEMC 25 (KLR)
- Parties
- Applicant: BAN; Respondent: CBK
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 566 of 2017
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Desertion, Christian Marriage, Grounds for Divorce
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
BAN
Applicant
CBK
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 grounds of irretrievable breakdown and desertion have been established.
Ratio Decidendi
The court found that the petitioner had established the grounds for dissolution of the marriage under section 65 of the Marriage Act, 2014, specifically irretrievable breakdown and desertion. The evidence showed a lack of intention to salvage the marriage and a period of physical separation. The court emphasized that marriage is a voluntary union and that it cannot compel parties to remain married when one party seeks dissolution. The petition was allowed, and the marriage was dissolved.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between BAN and CBK is hereby dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
BAN v CBK (Divorce Cause 566 of 2017) [2023] KEMC 25 (KLR) (23 November 2023) (Judgment)
Neutral citation: [2023] KEMC 25 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause 566 of 2017
JP Aduke, SRM
November 23, 2023
Between
BAN
Petitioner
and
CBK
Respondent
Judgment
1. The Petitioner filed the petition undated on 03rd August 2017 seeking a divorce on the grounds of desertion 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 neither entered appearance nor filed a response. The petitioner filed an application seeking to have the petition proceed undefended. Return of service on record shows the petitioner served the respondent with the said application. These proceedings proceeded undefended.
2. The brief facts of the case are as contained in the petition on record. In summary, BAN and CBK solemnized their marriage on 23rd August 2002 in Church in Kenya. Both the Petitioner and respondent are domiciled in Kenya. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:1. Irretrievable breakdown of the marriage;2. Desertion;
3. At the hearing thereof, the petitioner relied on the petition and verifying affidavit 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. She prayed for an order of dissolution of the marriage.
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 (on 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 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 the Petition on lack of such intention. The reasoning of the court in ROK v MJB [2017] eKLR 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..."
7. Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition undated before me 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. This being a family matter, each party to bear own costs.4. File Closed.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED AND SIGNED THIS 23RD NOVEMBER 2023 AT 12PM.