[2023] KEMC 201 (KLR)
The court found that the grounds of cruelty and irreconcilable differences as pleaded by the petitioner were established and had led to the irretrievable breakdown of the marriage. Both parties unequivocally sought dissolution, and there was no intention to salvage the union. Applying section 65 of the Marriage Act,...
Source-derived case information.
- Citation
- [2023] KEMC 201 (KLR)
- Parties
- Applicant: OMOO; Respondent: PM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E765 of 2021
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Cruelty, Irretrievable Breakdown, Christian Marriage, Grounds for Divorce
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
OMOO
Applicant
PM
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under section 65 of the Marriage Act, 2014.
- 2 Whether the grounds of cruelty and irreconcilable differences have been established to warrant dissolution of marriage.
Ratio Decidendi
The court found that the grounds of cruelty and irreconcilable differences as pleaded by the petitioner were established and had led to the irretrievable breakdown of the marriage. Both parties unequivocally sought dissolution, and there was no intention to salvage the union. Applying section 65 of the Marriage Act, 2014, and relevant case law, the court held that it cannot force two adults to remain married where the relationship has broken down and both parties desire divorce. The marriage was therefore dissolved, and a decree nisi was issued to be made absolute in 30 days. Each party was ordered to bear their own costs, consistent with the nature of family proceedings.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between OMOO and PM is hereby dissolved.
- Decree nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
OMOO v PM (Divorce Cause E765 of 2021) [2023] KEMC 201 (KLR) (2 June 2023) (Judgment)
Neutral citation: [2023] KEMC 201 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E765 of 2021
JP Aduke, SRM
June 2, 2023
Between
OMOO
Petitioner
and
PM
Respondent
Judgment
1. The petitioner filed the petition dated 17th June 2020 on grounds of cruelty and irreconcilable differences. Return of service on record shows that the respondent was served with the petition and annexures thereto. The respondent entered appearance and filed a response. The petitioner filed an application seeking to have the petition proceed as a defended cause. Return of service on record shows the petitioner served the respondent with the said application. These proceedings proceeded defended.
2. The brief facts of the case are as contained in the petition and answer to petition on record. In summary, OMOO and PM solemnized their marriage on 21st August 2011 at Nairobi Undenominational Church in Nairobi. Both parties are domiciled in Kenya. The particulars of the grounds for divorce are outlined in the petition as follows:1. Cruelty;2. Irreconcilable differences;
3. At the hearing thereof, the petitioner relied on his petition and verifying affidavit on record as evidence in support of his petition for divorce. He prayed for orders of dissolution of marriage and that each party bear their own costs of the suit. The respondent equally testified and prayed for an order of divorce from 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. The applicable law is section 65 of the Act (on dissolution of Christian marriages) which provides that the court may grant separation or divorce on the following grounds:1. Adultery by the other spouse2. Cruelty by the other spouse3. Exceptional depravity by the other spouse4. Desertion by the other spouse for at least 3 years5. The irretrievable breakdown of a 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 in s.65 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 vs. ENB [2015]. 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…” Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 17th June 2020 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.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 29TH JUNE 2023 IN THE PRESENCE OF THE PARTIES AT 10. 30AM.In the presence of:1. Court Assistant: Benjamin Kombe2. Counsel for Petitioner:3. Counsel for Respondent: