[2023] KEMC 81 (KLR)
The court found that the marriage between the parties had irretrievably broken down, as evidenced by prolonged physical separation since 2016, mutual antagonism, and the unequivocal lack of intention by both parties to salvage the union. The court applied section 66 of the Marriage Act 2014, which allows for...
Source-derived case information.
- Citation
- [2023] KEMC 81 (KLR)
- Parties
- Applicant: CMJ; Respondent: JKM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E663 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Dissolution of Marriage, Cruelty, Desertion, Irretrievable Breakdown
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CMJ
Applicant
JKM
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under section 66 of the Marriage Act 2014.
- 2 Whether the grounds of cruelty, desertion, and irretrievable breakdown have been established.
Ratio Decidendi
The court found that the marriage between the parties had irretrievably broken down, as evidenced by prolonged physical separation since 2016, mutual antagonism, and the unequivocal lack of intention by both parties to salvage the union. The court applied section 66 of the Marriage Act 2014, which allows for dissolution of marriage on grounds including cruelty, desertion, and irretrievable breakdown. The court further relied on established case law affirming that marriage is a voluntary union and that courts cannot compel parties to remain married where there is no mutual desire to continue the relationship. Consequently, the court allowed the petition for divorce and ordered the...
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties is hereby dissolved.
- Decree Nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
CMJ v JKM (Divorce Cause E663 of 2022) [2023] KEMC 81 (KLR) (21 March 2023) (Judgment)
Neutral citation: [2023] KEMC 81 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E663 of 2022
JP Aduke, SRM
March 21, 2023
Between
CMJ
Petitioner
and
JKM
Respondent
Judgment
1. The petitioner filed the petition dated 03rd June 2022 seeking a divorce on the grounds of cruelty, 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 entered appearance and filed an answer to the petition. These proceedings proceeded defended.
2. The brief facts of the case are as contained in paragraph 1-14 of the petition and the answer to petition on record. In summary, CMJ and JKM solemnized their marriage on 25th July 2014 at the registrar’s office. 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. Cruelty;2. Desertion;3. Irretrievable breakdown of the marriage.
3. At the hearing thereof, the petitioner relied on the petition and the pleadings on record as evidence to 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. The respondent testified and prayed for an order of divorce from this court.
4. The issue for determination before this court is whether the marriage between the parties merits an order of the divorce under The Marriage Act2014.
5. The applicable law is section 66 of the Act (dissolution of Civil 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 66 of the Act. I have also noted the length of physical separation of the couple (since 2016 to date), the levels of antagonism between the parties 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 paragraph 11 of the petition and the answer to petition on lack of such intention. The reasoning of the court in ROK v MJBand 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….” Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 03rd June 2022 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 their own costs.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 21ST DAY OF MARCH 2023 IN THE ABSENCE OF THE PARTIES AT 2PM.In the presence of :1. Court Assistant: BENJAMIN KOMBE