[2023] KEMC 103 (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 court considered the particulars of cruelty and desertion, the length of physical separation, and the unequivocal lack of intention to salvage the...
Source-derived case information.
- Citation
- [2023] KEMC 103 (KLR)
- Parties
- Applicant: JKM; Respondent: ENM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E370 of 2021
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition for divorce allowed; marriage dissolved.
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Cruelty, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JKM
Applicant
ENM
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 grounds of cruelty and desertion have been established to warrant dissolution of the marriage.
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 court considered the particulars of cruelty and desertion, the length of physical separation, and the unequivocal lack of intention to salvage the marriage. Relying on established legal principles that marriage is a voluntary union and that the court cannot compel unwilling parties to remain married, the court concluded that the grounds for divorce were sufficiently established. Accordingly, the petition for dissolution of marriage was allowed.
Court Disposition
Petition for divorce 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
JKM v ENM (Divorce Cause E370 of 2021) [2023] KEMC 103 (KLR) (23 February 2023) (Judgment)
Neutral citation: [2023] KEMC 103 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E370 of 2021
JP Aduke, SRM
February 23, 2023
Between
JKM
Petitioner
and
ENM
Respondent
Judgment
1. The Petitioner filed the petition dated April 6, 2021 seeking a divorce on the grounds of irretrievable breakdown of the marriage, cruelty and desertion. 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 1-18 of the petition on record and the answer to petition on record. In summary, JKM and ENM solemnized their marriage in Church in Kenya on 18th December 2010. Both parties are domiciled in Kenya. They have three issues together. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:
3. Irreconcilable differences /Irretrievable breakdown of the marriage;2. Cruelty;3. Desertion.
4. 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 was absent on the date of the hearing. As a result defence counsel closed the defence case without calling any witnesses.
5. 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).
6. 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.
7. 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 high 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 18 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 6th April 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.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 23RD FEBRUARY 2023. In the presence of :Court Assistant: Benjamin KombeCounsel for the Petitioner-Counsel for the Respondent: