[2023] KEMC 230 (KLR)
The court found that the petitioner had established the grounds for dissolution of the marriage as set out in section 66 of the Marriage Act, 2014, specifically irretrievable breakdown, adultery, and cruelty. The court noted the parties' physical separation, the petitioner's clear lack of intention to salvage the...
Source-derived case information.
- Citation
- [2023] KEMC 230 (KLR)
- Parties
- Applicant: MS; Respondent: MKK
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Judgment Date
- 22 June 2023
- Case Number
- Divorce Cause E957 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Adultery, Cruelty, Dissolution of Marriage
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
MS
Applicant
MKK
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties has irretrievably broken down and merits dissolution under the Marriage Act, 2014.
- 2 Whether the grounds of adultery and cruelty have been established to warrant a divorce order.
Ratio Decidendi
The court found that the petitioner had established the grounds for dissolution of the marriage as set out in section 66 of the Marriage Act, 2014, specifically irretrievable breakdown, adultery, and cruelty. The court noted the parties' physical separation, the petitioner's clear lack of intention to salvage the marriage, and the absence of any response or contest from the respondent. Citing relevant case law, the court emphasized that marriage is a voluntary union and cannot be sustained by compulsion where one party seeks dissolution. Consequently, the court granted the orders sought, dissolving the marriage and issuing a decree nisi to be made absolute in 30 days, with each party to...
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties is hereby dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
MS v MKK (Divorce Cause E957 of 2022) [2023] KEMC 230 (KLR) (22 June 2023) (Judgment)
Neutral citation: [2023] KEMC 230 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E957 of 2022
JP Aduke, SRM
June 22, 2023
Between
MS
Petitioner
and
MKK
Respondent
Judgment
1. The Petitioner filed the petition dated 28th July 2022 seeking a divorce on the grounds of irretrievable breakdown of the marriage, adultery and cruelty. 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 1-16 of the petition on record. In summary, MS and MKK solemnized their marriage on 21st April 2010 at the Office of the Attorney General in Kenya. They have three issues together from the union as at the date of conclusion of the hearing before me. Both of them 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;2. Cruelty;3. Adultery;
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.66 (dissolution of Civil Marriages) of the Act 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, 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 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 28th July 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 own costs.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED, DELIVERED AND SIGNED AT NAIROBI THIS 22ND JUNE 2023 AT 10. 45AM.In the presence of :1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner- N/A3. Counsel for the Respondent: N/A