[2023] KEMC 148 (KLR)
The court found that the petitioner had established the ground of irretrievable breakdown of marriage as required under section 65 of the Marriage Act, 2014. The evidence showed that the parties had been physically separated since 2021, had no intention of reconciling, and there were no children from the union. The...
Source-derived case information.
- Citation
- [2023] KEMC 148 (KLR)
- Parties
- Applicant: JKNW; Respondent: ESW
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1320 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
JKNW
Applicant
ESW
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 an order of dissolution of marriage.
Ratio Decidendi
The court found that the petitioner had established the ground of irretrievable breakdown of marriage as required under section 65 of the Marriage Act, 2014. The evidence showed that the parties had been physically separated since 2021, had no intention of reconciling, and there were no children from the union. The respondent did not contest the petition. The court emphasized that marriage is a voluntary union and it cannot compel parties to remain married when one party seeks dissolution. Accordingly, the court granted the order for dissolution of marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the petitioner and respondent is hereby dissolved.
- Decree nisi to issue forthwith and be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
JKNW v ESW (Divorce Cause E1320 of 2022) [2023] KEMC 148 (KLR) (15 May 2023) (Judgment)
Neutral citation: [2023] KEMC 148 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1320 of 2022
JP Aduke, SRM
May 15, 2023
Between
JKNW
Petitioner
and
ESW
Respondent
Judgment
1. The Petitioner filed the petition dated 1st November 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 1-9 of the petition on record. In summary, JKNW and ESW solemnized their marriage on 30th December 2015 in Church in Kenya. They have nil issues together 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. 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 (since 2021) 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 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....”
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 01st November 2022 before me on the following terms:1. the marriage between the two be and is hereby dissolved.2. Decree nisi do issue forthwith 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 15TH MAY 2023. In the presence of:-1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner- N/A3. Counsel for the Respondent: N/A