[2023] KEMC 139 (KLR)
The court found that the petitioner had established the ground of irretrievable breakdown of the marriage as contemplated under section 65 of the Marriage Act, 2014. The court considered the particulars in the petition, the lack of intention by either party to salvage the marriage, and the absence of opposition or...
Source-derived case information.
- Citation
- [2023] KEMC 139 (KLR)
- Parties
- Applicant: HWA; Respondent: GA
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E806 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Christian Marriage, Grounds for Divorce
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HWA
Applicant
GA
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties has irretrievably broken down and merits dissolution under the Marriage Act, 2014.
- 2 Whether the petitioner has established grounds for divorce as required by law.
Ratio Decidendi
The court found that the petitioner had established the ground of irretrievable breakdown of the marriage as contemplated under section 65 of the Marriage Act, 2014. The court considered the particulars in the petition, the lack of intention by either party to salvage the marriage, and the absence of opposition or evidence from the respondent. Relying on established case law, the court held that marriage is a voluntary union and cannot be sustained by compulsion where love and cohabitation have ceased. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
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
21 paragraphs
HWA v GA (Divorce Cause E806 of 2022) [2023] KEMC 139 (KLR) (2 May 2023) (Judgment)
Neutral citation: [2023] KEMC 139 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E806 of 2022
JP Aduke, SRM
May 2, 2023
Between
HWA
Petitioner
and
GA
Respondent
Judgment
1. The Petitioner filed the petition dated 30th June 2022 seeking a divorce on the grounds 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 entered appearance and filed an answer to the petition. These proceedings proceeded defended.
2. The brief fact of the case are as contained in para 1-10 of the petition on record. In summary, HWA and GA solemnized their marriage in Kenya on 2nd October 1999. Both parties are domiciled in Kenya. They have four issues together from the union as at the date of conclusion of the hearing. 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 /Irretrievable breakdown of the marriage;
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 respondent counsel did not call any witnesses and closed the respondent’s case without calling any witnesses.
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 vs ENB[2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of para 8 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…” 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 June 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 their own costs.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 02ND MAY 2023. In the presence of :1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner-3. Counsel for the Respondent: