[2023] KEMC 171 (KLR)
The court found that the marriage between the petitioner and respondent had irretrievably broken down as contemplated under section 65 of the Marriage Act, 2014. The petitioner demonstrated, through the petition and verifying affidavit, that there were irreconcilable differences and no intention to salvage the...
Source-derived case information.
- Citation
- [2023] KEMC 171 (KLR)
- Parties
- Applicant: JGG; Respondent: SMW
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E155 of 2023
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed; marriage dissolved.
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Irreconcilable Differences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JGG
Applicant
SMW
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 the petitioner is entitled to a decree of divorce based on irreconcilable differences.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent had irretrievably broken down as contemplated under section 65 of the Marriage Act, 2014. The petitioner demonstrated, through the petition and verifying affidavit, that there were irreconcilable differences and no intention to salvage the marriage. The respondent did not contest the petition. The court relied on statutory provisions and relevant case law to conclude that it cannot compel parties to remain married where the union has broken down and one party seeks dissolution. Accordingly, the court granted the order for dissolution of the marriage.
Court Disposition
Petition for divorce allowed; marriage dissolved.
Orders
- The marriage between the petitioner and respondent is hereby dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
JGG v SMW (Divorce Cause E155 of 2023) [2023] KEMC 171 (KLR) (14 June 2023) (Judgment)
Neutral citation: [2023] KEMC 171 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E155 of 2023
JP Aduke, SRM
June 14, 2023
Between
JGG
Petitioner
and
SMW
Respondent
Judgment
1The Petitioner filed the petition dated 03rd February 2023 seeking a divorce on the ground of irreconcilable differences and 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.
2The brief facts of the case are as contained in the petition on record. In summary, JGG and SMW solemnized their marriage on 23rd February 2008 in Church in Nairobi in Kenya. The parties have two issues from the union. 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. Irreconcilable differences;2. Irretrievable breakdown of the marriage;
3At 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.
4The 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).
5The 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.
6I 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 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…”
7Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 03rd February 2023 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, DELIVERED AND SIGNED THIS 14TH JUNE 2023 AT 11. 30AM.In the presence of:Court Assistant: BENJAMIN KOMBECounsel for the Petitioner- N/ACounsel for the Respondent: N/A