[2023] KEMC 146 (KLR)
The court found that the petitioner had established grounds for dissolution of the marriage under section 65 of the Marriage Act, 2014, specifically cruelty and irretrievable breakdown. The court noted the parties' physical separation since 2020 and the petitioner's clear statement that there was no intention to...
Source-derived case information.
- Citation
- [2023] KEMC 146 (KLR)
- Parties
- Applicant: FSO; Respondent: IAO
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1023 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Cruelty, Irretrievable Breakdown, Christian Marriage, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FSO
Applicant
IAO
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties has irretrievably broken down under the Marriage Act, 2014.
- 2 Whether cruelty has been established as a ground for divorce.
- 3 Whether the court should grant a decree of divorce in the absence of a response from the respondent.
Ratio Decidendi
The court found that the petitioner had established grounds for dissolution of the marriage under section 65 of the Marriage Act, 2014, specifically cruelty and irretrievable breakdown. The court noted the parties' physical separation since 2020 and the petitioner's clear statement that there was no intention to salvage the marriage. The respondent, having been duly served, failed to respond or contest the proceedings. The court emphasized that marriage is a voluntary union and it cannot compel parties to remain married where one party seeks dissolution. Accordingly, the court granted the petition for divorce, ordered the marriage dissolved, and issued a decree nisi to be made absolute in...
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and respondent is hereby dissolved.
- Decree nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
FSO v IAO (Divorce Cause E1023 of 2022) [2023] KEMC 146 (KLR) (11 May 2023) (Judgment)
Neutral citation: [2023] KEMC 146 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1023 of 2022
JP Aduke, SRM
May 11, 2023
Between
FSO
Petitioner
and
IAO
Respondent
Judgment
1. The Petitioner filed the petition dated 18th August 2022 seeking a divorce on the ground of irretrievable breakdown of the marriage and cruelty. 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 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 para 1-14 of the petition on record. In summary, FSO and IAO solemnized their marriage on 17th August 2018 in Church in Kenya. They have nil issues together from the union as at the date of writing this judgment. 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. Irretrievable breakdown of the marriage;
3. At the hearing thereof, the petitioner relied on his petition and verifying affidavit 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. He prayed for an order of dissolution of the marriage.
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 (on 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 (since 2020) and relied on the reasoning of the court in JSM vs ENB[2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of para 10 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 18th August 2022 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 11TH MAY 2023. In the presence of:1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner- N/A3. Counsel for the Respondent: N/A