https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/360

BNW v JWG (Divorce Cause E004 of 2026) [2026] KEMC 360 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEMC 360 (KLR) Republic of Kenya In the Nyeri Law Courts Divorce Cause E004 of 2026 MM Gituma, SRM July 29, 2026 Between BNW Petitioner and JWG Respondent Judgment 1.The Petitioner avers that she has been married to the Respondent for the last 26 years with the marriage having been solemnized at the Registrar’s Office in Nyeri on 23rd November 1999. The marriage was blessed with two children who are now adults. The Petitioner and Respondent lived as husband and wife at Maganjo within the Republic of Kenya. 2.The Petitioner laments that the marriage has been characterized with cruelty, desertion, adultery and exceptional depravity leading to the marriage breaking down irretrievably. The Petitioner explains that she has been subjected to emotional, physical, financial and psychological abuse. Specifically, the Petitioner points out two incidents of physical violence which the Petitioner described as threatening to kill and attempted murder in 2021 and 2025 respectively that led her to reporting the matters to the police. However, the Respondent was not charged in court as he was in the habit of coercing the Petitioner to withdraw the matters. 3.The Petitioner details the particulars of the marriage breaking down irretrievably as; the Respondent physically assaulting her to the point of injuring her, the Respondent being adulterous, the Respondent deserting her and the Respondent’s actions portraying exceptional depravity. 4.The Petitioner states that despite reconciliatory talks and mediation, the marriage has broken down irretrievably. For these reasons, the Petitioner seeks that the marriage be dissolved and costs for the suit. Response 5.The Respondent filed a response to the Petition dated 7th April 2026. The Respondent contends that he did not physically assault the Petitioner; to the contrary, it is he who has been assaulted severally by the Petitioner. The Respondent points to a specific incident where he was assaulted by the Petitioner and he reported the matter to the police in 2025. 6.The Respondent contends that he has always been a faithful, diligent and a committed spouse and he has made efforts to sustain the marriage. He claims that any disagreements between him and the Petitioner were ordinary marital disagreements which do not amount to cruelty. However, the Respondent urges that the marriage has broken down irretrievably and the Petitioner has contributed to the breakdown of the marriage. He claims that the Petitioner has created a hostile environment, neglected her marital duties, instigated disputes and has exhibited confrontational and aggressive behavior. 7.The Respondent urges that the court should find that the Petitioner has contributed to the breakdown of the marriage and dissolve the marriage with each party bearing his or her own costs. Hearing 8.When the matter came up for hearing, the Petitioner adopted her statement dated 12th January 2026 and produced the documents in her list of documents of even date. She emphasized that the Respondent has been cruel to her as he has threatened to kill her on several occasions. She told the court that they have failed in trying to salvage the marriage. Upon cross-examination, she admitted that the Respondent has never been charged in court with any criminal offence. 9.Counsel for the Respondent sought to have the court dispense with the attendance of the Respondent and instead adopt his statement and his documents as his evidence. Counsel for the Petitioner did not object. The court proceeded to adopt the Respondent’s statement dated 7th April 2026 and his documents as his evidence. The Determination 10.I have read and appreciated the submissions by the Petitioner dated 13th July 2026 and those by the Respondent dated 8th July 2026. 11.The Petitioner and Respondent contracted a civil marriage on 23rd November 1999. Section 66 of the Marriage Act provides the following grounds for the dissolution of a civil marriage:66. (1)A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.(2)A party to a marriage celebrated under Part IV may only petition the court for the separation of the parties or the dissolution of the marriage on the following grounds—(a)adultery by the other spouse;(b)cruelty by the other spouse;(c)exceptional depravity by the other spouse;(d)desertion by the other spouse for at least three years; or(e),the irretrievable breakdown of the marriage….(6)A marriage has irretrievably broken down if—(a)a spouse commits adultery;(b)a spouse is cruel to the other spouse or to any child of the marriage;(c)a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;(d)the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;(e)a spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition;(f)a spouse has been sentenced to a term of imprisonment of the for life or for a term of seven years or more;(g)a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the life time of the respondent in the light of existing medical knowledge; or(h)any other ground as the court may deem appropriate 12.The Petitioner claims that the marriage has been characterized with cruelty, desertion, adultery and exceptional depravity from the Respondent leading to the marriage breaking down irretrievably. She emphasizes that the Respondent has been physically abusive to her and depicts two incidents of violence in 2021 and 2025 wherein she claims that the Respondent threatened to kill her and attempted to murder her respectively. She produced the OB extracts for the two incidents. On the other hand, the Respondent claims that it is the Petitioner who has been physically violent to him. He points to an incident that occurred in 2025 and claims that the Petitioner assaulted him and he reported the matter to the police. He has produced an OB extract for the incident. The Respondent admits that the marriage has broken down irretrievably but urges the court to find that the Petitioner has contributed to the breakdown of the marriage. 13.In my view, both the Petitioner and Respondent pleaded the ground of cruelty. Both adduced evidence of cruelty being the OB extracts. The court takes note of the OB extracts. While the court is not diminishing the occurrence of the said incidents, I note that there was no sufficient evidence adduced by either party to conclusive state that the other committed the offences alleged. 14.Be that as it may, it is evident from the evidence of both parties that the marriage has seen better days. It would appear that the marriage has been in a state of decline for a while. Both parties acknowledge that they have tried to resolve the marriage to no avail. They have attempted mediation and counseling and the said avenues have failed. In my view, this shows that the marriage has broken down irretrievably. It is on this ground that the marriage will be dissolved. 15.For the above reasons, I will allow the petition. Orders are issued as follows:a.The marriage between the Petitioner and Respondent is hereby dissolved.b.A decree nisi to issue and a decree absolute to issue after the lapse of 30 days from the date hereof.c.Each party will bear its own costs. DATED, SIGNED, AND DELIVERED IN NYERI ON THIS 29TH DAY OF JULY 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:…………………………..………………Petitioner…………………………………………..Respondent…………………………………….Court AssistantM.M GITUMA