[2023] KEMC 83 (KLR)
The court found that the petitioner had established the grounds of cruelty and irretrievable breakdown of the marriage as required under section 66 of the Marriage Act, 2014. The court noted the prolonged separation since 2019, the absence of any intention to reconcile, and the antagonism between the parties....
Source-derived case information.
- Citation
- [2023] KEMC 83 (KLR)
- Parties
- Applicant: JJAO; Respondent: ROO
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1254 of 2021
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Cruelty, Irretrievable Breakdown, Christian Marriage, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
JJAO
Applicant
ROO
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under section 66 of the Marriage Act, 2014.
- 2 Whether the grounds of cruelty and irretrievable breakdown have been established.
Ratio Decidendi
The court found that the petitioner had established the grounds of cruelty and irretrievable breakdown of the marriage as required under section 66 of the Marriage Act, 2014. The court noted the prolonged separation since 2019, the absence of any intention to reconcile, and the antagonism between the parties. Relying on established case law, the court held that it cannot compel parties to remain in a marriage where one party has categorically stated the desire for dissolution. The petition was therefore allowed, and the marriage was ordered dissolved.
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
21 paragraphs
JJAO v ROO (Divorce Cause E1254 of 2021) [2023] KEMC 83 (KLR) (17 February 2023) (Judgment)
Neutral citation: [2023] KEMC 83 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1254 of 2021
JP Aduke, SRM
February 17, 2023
Between
JJAO
Petitioner
and
ROO
Respondent
Judgment
1. The Petitioner filed the petition dated 12th November 2021 seeking a divorce on the grounds of cruelty 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 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 1-16 of the petition on record. In summary, J.J.A.O. and R.O.O solemnized their marriage in Church in Kenya on 1st September 2018. Both parties are domiciled in Kenya. They have one issue together as at the date of conclusion of the hearing before me. 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. 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 did not show up on the date of the hearing. I have seen return of service on record confirming the respondent was served with a hearing notice indicating the correct date of hearing, which was fixed in open court. In view of this Petitioner Counsel applied to the court to have the defence case closed in their absence. The court allowed the application and reserved a date for delivery of judgment.
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.66 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.66 of the Act. I have also noted the length of physical separation of the couple herein (since 2019 to date), the levels of antagonism between the parties 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 11 of the Petition on lack of such intention. The reasoning of the court in ROK v MJB and TPH v NV 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 12th November 2021 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.
JUDGEMENT SIGNED AT NAIROBI THIS 17TH FEBRUARY 2023. ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEIn the presence of :Court Assistant: Benjamin KombeCounsel for the Petitioner-Counsel for the Respondent: