[2023] KEMC 128 (KLR)

MK v WM (Divorce Cause E189 of 2022) [2023] KEMC 128 (KLR) (15 May 2023) (Judgment)

Neutral citation: [2023] KEMC 128 (KLR)

Republic of Kenya

In the Chief Magistrate's Court (Milimani Law Courts)

Divorce Cause E189 of 2022

JP Aduke, SRM

May 15, 2023

Between

MK

Petitioner

and

WM

Respondent

Judgment

1. The Petitioner filed the petition dated 10th February 2022 seeking a divorce on the grounds of irretrievable breakdown of the marriage and cruelty. 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 facts of the case are as contained in para 1-12 of the petition and answer to petition on record. In summary, MK and WM solemnized their marriage in Kenya on 3rd Sept 2004 at the Office of the Attorney General in Kenya. Both the petitioner and the respondent are domiciled in Kenya. They have two issues together from the union. 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 /Irretrievable breakdown of the marriage;2. Cruelty;

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 was absent on the date of hearing. I have seen return of service on record confirming service of the hearing notice on the respondent. As a result, Petitioner Counsel prayed that the court closes the defence case. The court granted this application. The respondent’s case was closed without the respondent testifying.

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 Civil 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, 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 12 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 10th February 2022 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 15TH MAY 2023 IN THE PRESENCE OF PETITIONER COUNSEL AT 12. 30PM.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEIn the presence of :1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner-3. Counsel for the Respondent: