[2023] KEMC 168 (KLR)
The court found that the petitioner had established the grounds for dissolution of the marriage as set out in section 65 of the Marriage Act, 2014, namely adultery, cruelty, and desertion. The court noted the irretrievable breakdown of the marriage, the length of physical separation, and the unequivocal lack of...
Source-derived case information.
- Citation
- [2023] KEMC 168 (KLR)
- Parties
- Applicant: DKN; Respondent: CKN
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E719 of 2021
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed; marriage dissolved.
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Adultery, Cruelty, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DKN
Applicant
CKN
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 grounds of adultery, cruelty, and desertion have been established.
Ratio Decidendi
The court found that the petitioner had established the grounds for dissolution of the marriage as set out in section 65 of the Marriage Act, 2014, namely adultery, cruelty, and desertion. The court noted the irretrievable breakdown of the marriage, the length of physical separation, and the unequivocal lack of intention to salvage the union. Relying on relevant case law, the court held that it cannot compel parties to remain in a marriage that exists only on paper and has caused mental and emotional anguish. Accordingly, the court allowed the petition for divorce and ordered the dissolution of the marriage.
Court Disposition
Petition for divorce allowed; marriage dissolved.
Orders
- The marriage between the parties is hereby dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
DKN v CKN (Divorce Cause E719 of 2021) [2023] KEMC 168 (KLR) (1 August 2023) (Judgment)
Neutral citation: [2023] KEMC 168 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E719 of 2021
JP Aduke, SRM
August 1, 2023
Between
DKN
Petitioner
and
CKN
Respondent
Judgment
1. The Petitioner filed the petition dated 20th May 2021 seeking a divorce on the grounds of adultery, cruelty and desertion. Return of service on record shows that the respondent was served with the petition and annexures thereto. The respondent entered appearance but did not file a response. The petitioner filed an application seeking to have the divorce cause proceed undefended. Return of service on record shows the petitioner served the respondent with the said application. The proceedings proceeded undefended.
2. The brief facts of the case are as contained in the petition on record. In summary, DKN and CKN solemnized their marriage on 8th February 2008 at Nairobi Academy officiated by a marriage officer. They have two issues together from the union. 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. Adultery.2. Cruelty.3. Desertion.
3. At the hearing thereof, the petitioner relied on the petition and pleadings 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. The petitioner prayed that the petition be allowed.
5. 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).
6. The applicable law is s s.65(dissolution of Christian Marriages) of the Act 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. Desertion by the other spouse.4. Exceptional depravity by the other spouse.5. The irretrievable breakdown of the marriage.
7. 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 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 ENC v SNK[2015] eKLR cannot be emphasized enough- " this is a marriage that appears to be on paper only, the same having irretrievably broken down on account of the desertion. The desertion has no doubt occasioned mental and emotional anguish and pain. I am therefore satisfied that the grounds for dissolution of the marriage have been established. " Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 20th May 2021 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.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED AND SIGNED THIS 1ST AUGUST 2023In the presence of:1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner-3. Counsel for the Respondent: