[2023] KEMC 44 (KLR)
The court found that the marriage had irretrievably broken down as evidenced by the unequivocal statements in both the petition and the answer to petition, the absence of any intention to salvage the marriage, and the high levels of antagonism and physical separation between the parties. The court applied Section 66...
Source-derived case information.
- Citation
- [2023] KEMC 44 (KLR)
- Parties
- Applicant: PMK; Respondent: JMJ
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E148 of 2023
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Cruelty, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PMK
Applicant
JMJ
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties should be dissolved 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 statements in both the petition and the answer to petition, the absence of any intention to salvage the marriage, and the high levels of antagonism and physical separation between the parties. The court applied Section 66 of the Marriage Act, 2014, and relevant case law, holding that it cannot compel parties to remain married where the union has broken down and one party seeks dissolution. The petitioner's evidence was uncontested, and the respondent did not participate in the hearing. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties is dissolved.
- Decree nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
PMK v JMJ (Divorce Cause E148 of 2023) [2023] KEMC 44 (KLR) (30 November 2023) (Judgment)
Neutral citation: [2023] KEMC 44 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E148 of 2023
JP Aduke, SRM
November 30, 2023
Between
PMK
Petitioner
and
JMJ
Respondent
Judgment
1. The Petitioner filed the petition dated 02nd February 2023 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 record. In summary, PMK and JMJ solemnized their marriage in Kenya on 07th Sept 2017 at the Office of the Attorney General. Both the respondent and the petitioner 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 and answer to petition as follows:1. 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 did not testify on the date of the hearing, and was absent in spite of service of process.
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 the answer to 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 high 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 to 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 02nd February 2023 on the following terms:1. The marriage between the two be and is hereby dissolved.2. Decree nisido issue to be made absolute in 30 days.3. This being a family matter, each party to bear their own costs.
JUDGEMENT SIGNED AT NAIROBI THIS 30TH NOVEMBER 2023 IN THE PRESENCE/ABSENCE OF THE PARTIES AT 12PM.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEIn the presence of:1. Court Assistant: BENJAMIN KOMBE2. Counsel for the Petitioner-3. Counsel for the Respondent: