[2023] KEMC 175 (KLR)

EM v CNO (Divorce Cause E417 of 2021) [2023] KEMC 175 (KLR) (12 June 2023) (Judgment)

Neutral citation: [2023] KEMC 175 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Divorce Cause E417 of 2021

JP Aduke, SRM

June 12, 2023

Between

EM

Petitioner

and

CNO

Respondent

Judgment

1. The Petitioner filed the petition dated 19th April 2021 seeking a divorce on the grounds of irretrievable breakdown of the marriage, cruelty, desertion and adultery. 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 the petition and the answer to petition on record. In summary, EMK and CNO solemnized their marriage on 08th December 2018 in Church in Kenya. Both parties are domiciled in Kenya. They have two issues together from the marriage. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:1. Irreconcilable differences;2. Adultery;3. Cruelty;4. 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 as prayed. The petitioner called three witnesses while the respondent called only one witness. The testimony of each witness was tested in cross examination. The hearing proceedings were quite acrimonious. Both parties reiterated they wanted an order of divorce.

4. 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).

5. The applicable law is s.65 of the Act (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.

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, 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 the Petition and Answer to Petition on lack of such intention. The reasoning of the court in ROK v MJB 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…” Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 19th April 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 their own costs.4. With respect to prayer (b) on the face of the petition, I have not seen any documentary proof that the petitioner was wholly dependent on the respondent during the pendency of the marriage. On the contrary, I have seen lots of loan agreements between the Petitioner and other third parties. From the documents available on record and from the Petitioner’s witness statement, it is apparent that the only reason the petitioner is asking for alimony is because “the respondent is an Engineer and senior employee of Kenya Breweries Limited….” I have not seen any affidavit of statement of means filed by the petitioner. I am reluctant to grant any orders in this regard;5. The Petitioner is at liberty to file a civil suit for recovery of loan amounts as outlined in the various loan agreements on file, whenever ready;6. The Petitioner is at liberty to file a separate suit for division of matrimonial property in the appropriate forum.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY IN COURT AT NAIROBI THIS 12TH JUNE 2023 AT 10. 45AMIn the presence of :1. Court Assistant: BENJAMIN KOMBE2. Counsel for the Petitioner-3. Counsel for the Respondent: