[2023] KEMC 157 (KLR)
The court found that the petitioner had established the grounds of desertion and irretrievable breakdown of the marriage as required under section 66 of the Marriage Act, 2014. The court noted the length of separation, the unequivocal lack of intention to salvage the marriage, and the absence of any response or...
Source-derived case information.
- Citation
- [2023] KEMC 157 (KLR)
- Parties
- Applicant: LIH; Respondent: COK
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1522 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Desertion, Marriage Dissolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
LIH
Applicant
COK
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved on grounds of desertion and irretrievable breakdown under the Marriage Act, 2014.
Ratio Decidendi
The court found that the petitioner had established the grounds of desertion and irretrievable breakdown of the marriage as required under section 66 of the Marriage Act, 2014. The court noted the length of separation, the unequivocal lack of intention to salvage the marriage, and the absence of any response or contest from the respondent. Relying on relevant case law, the court held that it cannot compel parties to remain married where the marriage has broken down and one party seeks dissolution. Accordingly, the court granted the order for dissolution of the marriage, issued a decree nisi to be made absolute in 30 days, and ordered each party to bear their own costs.
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
LIH v COK (Divorce Cause E1522 of 2022) [2023] KEMC 157 (KLR) (22 August 2023) (Judgment)
Neutral citation: [2023] KEMC 157 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1522 of 2022
JP Aduke, SRM
August 22, 2023
Between
LIH
Petitioner
and
COK
Respondent
Judgment
1. The Petitioner filed the petition dated 15th December 2022 seeking a divorce on the grounds of desertion and irretrievable breakdown of the marriage. Return of service on record shows that the respondent was served with petition and annexures hereto. The respondent neither entered appearance nor filed a response. The petitioner filed an application seeking to have the divorce cause proceed undefended. Return of service on record shows that the respondent was served with the said application. These proceedings proceeded undefended.
2. The brief facts of the case are as contained in the petition on record. In summary, LIH and COK solemnized their marriage on 02nd April 2014 at the Registrar's Office in Bungoma. 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. Desertion;2. 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 for an order of dissolution of the marriage and for any other relief granted by the court.
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. 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 sesubparation of the couple herein, and relied on the reasoning of the court in JSM VS ENB[2015] eKLR. With respect to intention to salvage the union, I have noted the unequivocal terms of the petition on lack of such intention.The reasoning of the court in ROK v MJB[2017] eKLR 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…”
6. Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 15th December 2022 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 AND SIGNED THIS 22ND AUGUST 2023In the presence of:Court Assistant Benjamin KombeCounsel for the Petitioner-Counsel for the Respondent: