[2023] KEMC 138 (KLR)
The court found that the marriage between the petitioner and respondent had irretrievably broken down, as evidenced by the grounds pleaded—adultery, cruelty, and desertion—and the parties' unequivocal lack of intention to salvage the union. The court relied on Section 66 of the Marriage Act, 2014, and relevant case...
Source-derived case information.
- Citation
- [2023] KEMC 138 (KLR)
- Parties
- Applicant: NOA; Respondent: LLM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E238 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Adultery, Cruelty, Desertion
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
NOA
Applicant
LLM
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, cruelty, and desertion have been established to warrant divorce.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent had irretrievably broken down, as evidenced by the grounds pleaded—adultery, cruelty, and desertion—and the parties' unequivocal lack of intention to salvage the union. The court relied on Section 66 of the Marriage Act, 2014, and relevant case law, noting the prolonged physical separation since 2020 and mutual antagonism. The court emphasized that marriage is a voluntary union and cannot be sustained by compulsion where love and commitment have ceased. Accordingly, the petition for divorce was allowed, the marriage dissolved, and a decree nisi issued to be made absolute in 30 days, with costs awarded to the petitioner.
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
NOA v LLM (Divorce Cause E238 of 2022) [2023] KEMC 138 (KLR) (22 May 2023) (Judgment)
Neutral citation: [2023] KEMC 138 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E238 of 2022
JP Aduke, SRM
May 22, 2023
Between
NOA
Petitioner
and
LLM
Respondent
Judgment
1. The Petitioner filed the petition dated 22nd February 2022 seeking a divorce on the grounds of irretrievable breakdown of the marriage, desertion, cruelty and adultery. 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 fact of the case are as contained in the petition and answer to petition on record. In summary, NOA and LLM solemnized their marriage in Kenya on 08TH October 2015 at the Office of the Attorney General. Both the respondent and the petitioner are domiciled in Kenya. They have NIL 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. Adultery;3. Cruelty;4. Desertion;
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 equally testified and prayed for an order of divorce to issue.
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 (2020 to date), 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 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…” Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 22nd 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. The costs of the petition awarded to the Petitioner.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 22ND MAY 2023 IN THE ABSENCE/PRESENCE OF THE PARTIES AT 12. 20PM.In the presence of :Court Assistant: Benjamin KombeCounsel for the Petitioner-ounsel for the Respondent: