[2023] KEMC 250 (KLR)
The court found that the petitioner had established the grounds of cruelty and desertion, which contributed to the irretrievable breakdown of the marriage as contemplated under section 65 of the Marriage Act, 2014. The court noted the length of physical separation and the unequivocal lack of intention to salvage the...
Source-derived case information.
- Citation
- [2023] KEMC 250 (KLR)
- Parties
- Applicant: EKN; Respondent: NGK
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1152 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Cruelty, Desertion, Irretrievable Breakdown, Christian Marriage, Family Law Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EKN
Applicant
NGK
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under the Marriage Act, 2014 on grounds of cruelty and desertion.
- 2 Whether the petitioner has established the grounds for dissolution of marriage as required by law.
Ratio Decidendi
The court found that the petitioner had established the grounds of cruelty and desertion, which contributed to the irretrievable breakdown of the marriage as contemplated under section 65 of the Marriage Act, 2014. The court noted the length of physical separation and the unequivocal lack of intention to salvage the marriage. Relying on relevant case law, the court held that the marriage had broken down irretrievably and that it would not be just to force the parties to remain together. Consequently, the court granted the order for dissolution of the marriage, issued a decree nisi to be made absolute in 30 days, and ordered each party to bear their own costs.
Court Disposition
petition 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
22 paragraphs
EKN v NGK (Divorce Cause E1152 of 2022) [2023] KEMC 250 (KLR) (1 August 2023) (Judgment)
Neutral citation: [2023] KEMC 250 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1152 of 2022
JP Aduke, SRM
August 1, 2023
Between
EKN
Petitioner
and
NGK
Respondent
Judgment
1. The Petitioner filed the petition dated 28th September 2022 seeking a divorce on the grounds of cruelty and desertion. 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 divorce cause proceed undefended. Return of service on record shows that the respondent was served with the said application. These proceedings proceeded undefended.
2. The brief facts of the case are as contained in the petition on record. In summary, EKN and NGK solemnized their marriage on 6th March 1999 at (Particulars withheld) Church, Meru, Kenya officiated by a marriage officer. They have four 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. Cruelty.2. 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 for an order of dissolution of the marriage, that the respondent pay the costs of this petition and for any other relief granted by the court.
4. The issue of 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).
5. The applicable law is 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.
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 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 VS ENB[2015] EKLR. With respect to salvaging the union, I have noted the unequivocal terms of the petition on lack of such intention. The reasoning of the court in ENC VS 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."
7. Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 28th September 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 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: