[2023] KEMC 96 (KLR)
The court found that the petitioner had established the ground of irretrievable breakdown of the marriage as contemplated under section 65 of the Marriage Act 2014. The court considered the particulars outlined in the petition, the length of physical separation since 2019, the absence of any intention to salvage the...
Source-derived case information.
- Citation
- [2023] KEMC 96 (KLR)
- Parties
- Applicant: BKK; Respondent: KAO
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E667 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Christian Marriage, Grounds for Divorce
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
BKK
Applicant
KAO
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties merits an order of divorce under the Marriage Act 2014.
- 2 Whether the petitioner has established irretrievable breakdown of the marriage as a ground for divorce.
Ratio Decidendi
The court found that the petitioner had established the ground of irretrievable breakdown of the marriage as contemplated under section 65 of the Marriage Act 2014. The court considered the particulars outlined in the petition, the length of physical separation since 2019, the absence of any intention to salvage the marriage, and the lack of opposition from the respondent. The court relied on established legal principles that marriage is a voluntary union and that courts cannot compel parties to remain married where one party seeks dissolution. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between BKK and KAO is hereby dissolved.
- Decree Nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
BKK v KAO (Divorce Cause E667 of 2022) [2023] KEMC 96 (KLR) (13 March 2023) (Judgment)
Neutral citation: [2023] KEMC 96 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E667 of 2022
JP Aduke, SRM
March 13, 2023
Between
BKK
Petitioner
and
KAO
Respondent
Judgment
1. The petitioner filed the petition dated May 18, 2022 seeking a divorce on the ground of irretrievable breakdown of the marriage. Return of Service on record shows that the respondent was duly 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 paragraph 1-11 of the petition. In record BKK and KAO solemnized their marriage on August 13, 2016 at the church in Nairobi Chapel. They have nil issues from the union. Both parties are domiciled in Kenya. The parties have no intentions of salvaging the marriage. The particulars for the grounds for divorce are outlined as follows:
1. Irreconcilable differences/ irretrievable breakdown of the marriage. 3. At the hearing thereof, the petitioner relied on the petition and the pleadings on record as evidence in support the petition for the divorce. Notably the petition 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.
4. The issue for determination before this court is whether or not the marriage between the parties merits an order of the divorce under The Marriage Act 2014.
5. The applicable law is section 65 of the Act (dissolution of Christian marriages) which provides that the court may grant the separation of divorce on the following grounds:1. Adultery by the other spouse2. Cruelty by the other spouse3. Exceptional depravity by the other spouse4. Desertion by the other spouse for at least 3 years5. 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 section 65 of the Act. I have also noted the length of physical separation of the couple (since 2019 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 paragraph 9 of the petition on lack of such intention. The reasoning of the court in ROK vs 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….” Since this court cannot force two adults to live together when there is no more love between them, I allow the petition dated May 18, 2022 of 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 their own costs.
JUDGEMENT DELIVERED AND DATED AT NAIROBI THIS 13TH MARCH 2023 AT 1408HRS IN THE ABSENCE OF THE PARTIES.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEIn the presence of:Court Assistant :Benjamin Kombe