[2023] KEMC 144 (KLR)

GWN v BAO (Divorce Cause E869 of 2022) [2023] KEMC 144 (KLR) (25 April 2023) (Judgment)

Neutral citation: [2023] KEMC 144 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Divorce Cause E869 of 2022

JP Aduke, SRM

April 25, 2023

Between

GWN

Petitioner

and

BAO

Respondent

Judgment

1. The Petitioner filed the petition dated 15th July 2022 seeking a divorce on the ground of irretrievable breakdown of the marriage. 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 1-13 of the petition on record. In summary, GWN and BAO solemnized their marriage on 20th January 1996 in Kenya. They have four issues together from the union, two of them still minors 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. Irretrievable breakdown of the marriage; 3. At the hearing thereof, the petitioner relied on her 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. She 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 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 11 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 15th July 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 25TH APRIL 2023. In the presence of:1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner- N/A3. Counsel for the Respondent: N/A