[2023] KEMC 40 (KLR)
The court found that the marriage had irretrievably broken down, as evidenced by the unequivocal positions of both parties and the particulars of cruelty outlined in the petition. The court noted the absence of any intention to salvage the marriage and the prolonged separation and antagonism between the parties....
Source-derived case information.
- Citation
- [2023] KEMC 40 (KLR)
- Parties
- Applicant: MKN; Respondent: DOO
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1208 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Cruelty, Christian Marriage, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MKN
Applicant
DOO
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties merits an order of divorce under the Marriage Act, 2014.
- 2 Whether the grounds of cruelty and irretrievable breakdown have been established.
Ratio Decidendi
The court found that the marriage had irretrievably broken down, as evidenced by the unequivocal positions of both parties and the particulars of cruelty outlined in the petition. The court noted the absence of any intention to salvage the marriage and the prolonged separation and antagonism between the parties. Applying section 66 of the Marriage Act, 2014, and relevant case law, the court held that it cannot compel two adults to remain in a marriage where there is no mutual desire to continue the union. Consequently, the court granted the divorce as prayed.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties is dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
MKN v DOO (Divorce Cause E1208 of 2022) [2023] KEMC 40 (KLR) (1 November 2023) (Judgment)
Neutral citation: [2023] KEMC 40 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1208 of 2022
JP Aduke, SRM
November 1, 2023
Between
MKN
Petitioner
and
DOO
Respondent
Judgment
1. The Petitioner filed the petition dated 11th October 2022 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 facts of the case are as contained in the petition and answer to petition on file. In summary, MKN and DOO solemnized their marriage in Kenya on 06th June 2009 in Church in Kenya. Both parties 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. 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 testified and prayed for an order of divorce.
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, the levels of antagonism between the parties and relied on the reasoning of the court in JSM vs ENB [2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of the petition and answer 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...”
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 11th October 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.4. File Closed.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 01ST NOVEMBER 2023.