[2023] KEMC 27 (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, cruelty, and disrespect. The court noted the absence of any intention to salvage the marriage and the lack of opposition from the...
Source-derived case information.
- Citation
- [2023] KEMC 27 (KLR)
- Parties
- Applicant: ONM; Respondent: DAM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Judgment Date
- 1 November 2023
- Case Number
- Divorce Cause E264 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Cruelty, Disrespect, Civil Marriage, Uncontested Divorce
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
ONM
Applicant
DAM
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved under section 66 of the Marriage Act, 2014.
- 2 Whether the grounds of irretrievable breakdown, cruelty, and disrespect have been established to warrant a divorce.
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, cruelty, and disrespect. The court noted the absence of any intention to salvage the marriage and the lack of opposition from the respondent. Relying on statutory provisions and relevant case law, the court held that it cannot compel parties to remain in a marriage that has clearly broken down. Accordingly, the petition for divorce was allowed and the marriage dissolved.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between ONM and DAM is hereby dissolved.
- Decree nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
ONM v DAM (Divorce Cause E264 of 2022) [2023] KEMC 27 (KLR) (1 November 2023) (Judgment)
Neutral citation: [2023] KEMC 27 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E264 of 2022
JP Aduke, SRM
November 1, 2023
Between
ONM
Petitioner
and
DAM
Respondent
Judgment
1. The Petitioner filed the petition dated 16th February 2022 seeking a divorce on the grounds of disrespect , 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 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 1-10 of the petition on record. In summary, ONM and DAM solemnized their marriage on 06. 02. 2018 at the Office of the Attorney General in Kenya. 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. Disrespect;3. Cruelty;
3. At the hearing thereof, the petitioner relied on the petition and verifying affidavit on record as evidence in chief 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. He 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 inJSM vs ENB[2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of para 9 of the Petition on lack of such intention. The reasoning of the court in ROK v MJB [2017] 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 16th 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 own costs.
JUDGEMENT DATED AND SIGNED THIS 01ST NOVEMBER 2023 AT 11. 30AM.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATE