[2023] KEMC 101 (KLR)
The court found that the petitioner had established the grounds for divorce as set out in section 65 of the Marriage Act 2014, specifically cruelty, adultery, and irretrievable breakdown of the marriage. The court noted the absence of any intention by either party to salvage the marriage and the length of physical...
Source-derived case information.
- Citation
- [2023] KEMC 101 (KLR)
- Parties
- Applicant: FKM; Respondent: JNM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E092 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Grounds for Divorce, Irretrievable Breakdown, Cruelty, Adultery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FKM
Applicant
JNM
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under section 65 of the Marriage Act 2014.
- 2 Whether the grounds of cruelty, adultery, and irreconcilable differences have been established.
Ratio Decidendi
The court found that the petitioner had established the grounds for divorce as set out in section 65 of the Marriage Act 2014, specifically cruelty, adultery, and irretrievable breakdown of the marriage. The court noted the absence of any intention by either party to salvage the marriage and the length of physical separation. The proceedings were undefended, and the evidence in the petition was unchallenged. The court held that it cannot compel parties to remain married where the union has irretrievably broken down and the petitioner has unequivocally stated the desire for dissolution. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
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
22 paragraphs
FKM v JNM (Divorce Cause E092 of 2022) [2023] KEMC 101 (KLR) (7 March 2023) (Judgment)
Neutral citation: [2023] KEMC 101 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E092 of 2022
JP Aduke, SRM
March 7, 2023
Between
FKM
Petitioner
and
JNM
Respondent
Judgment
1. The petitioner filed the petition dated 30th November 2021 seeking a divorce on the grounds of cruelty, adultery, and irreconcilable differences in the marriage. Return of service on record shows that the respondent was duly 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.
2. The brief facts of the case are as contained in paragraph 1-11 of the petition. In record F.K.M & J.N.M solemnized their marriage on 3rd December 2005 at the Methodist Church in Kenya. They have three 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. Adultery.3. Irreconcilable differences.
3. At the hearing thereof, the petitioner relied on the petition and the pleadings on record as evidence in support of the petition for 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.
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 Act2014.
5. The applicable law is section 65 of the Act (dissolution of Christian 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 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 para 7 of the 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...”
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 30th November 2021 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.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED AND SIGNED THIS 07TH MARCH 2023In the presence of:1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner- N/A3. Counsel for the Respondent: N/A