[2023] KEMC 47 (KLR)

BWM v DWM (Divorce Cause E1491 of 2020) [2023] KEMC 47 (KLR) (28 November 2023) (Judgment)

Neutral citation: [2023] KEMC 47 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Divorce Cause E1491 of 2020

JP Aduke, SRM

November 28, 2023

Between

BWM

Petitioner

and

DWM

Respondent

Judgment

1The Petitioner filed the petition dated 28th December 2020 seeking a divorce on the grounds of desertion, cruelty, adultery 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.

2The brief facts of the case are as contained in the petition on record. In summary, BWM and DWM solemnized their marriage on 07th December 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. Cruelty;4. Adultery;

3At 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.

4The 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).

5The 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.

6I 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 v 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…”

7Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 28th December 2020 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 28TH NOVEMBER 2023 AT 12. 30PMIn the presence of:1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner- N/A3. Counsel for the Respondent: N/A