[2023] KEMC 59 (KLR)
The court found that the petitioner had established the grounds of irretrievable breakdown and desertion as required under Section 66 of the Marriage Act 2014. The parties had been physically separated since 2013, and there was clear evidence of antagonism and lack of intention to reconcile. The respondent did not...
Source-derived case information.
- Citation
- [2023] KEMC 59 (KLR)
- Parties
- Applicant: PMO; Respondent: JWM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1030 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Desertion, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PMO
Applicant
JWM
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 petitioner has established grounds of desertion and irretrievable breakdown of marriage.
Ratio Decidendi
The court found that the petitioner had established the grounds of irretrievable breakdown and desertion as required under Section 66 of the Marriage Act 2014. The parties had been physically separated since 2013, and there was clear evidence of antagonism and lack of intention to reconcile. The respondent did not contest the petition. The court relied on established legal principles that marriage is a voluntary union and cannot be sustained by compulsion where one party seeks dissolution. Accordingly, the court granted the order for dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties is hereby dissolved.
- Decree nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
PMO v JWM (Divorce Cause E1030 of 2022) [2023] KEMC 59 (KLR) (13 March 2023) (Judgment)
Neutral citation: [2023] KEMC 59 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1030 of 2022
JP Aduke, SRM
March 13, 2023
Between
PMO
Petitioner
and
JWM
Respondent
Judgment
1. The petition filed the petition dated August 30, 2022 seeking a divorce on grounds of desertion 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 this case are contained in paragraph 1-13 of the petition on record. In summary PMO and JWM solemnized their marriage in accordance with cap 150 of the Marriage Act Laws of Kenya. This was done on June 10, 1994 at the Office of the Registrar of Marriages. They have four issues together from the union, all adults as at the date of conclusion of the hearing. Both the Petitioner and the Respondent are domiciled in Kenya. The parties have no intentions of salvaging the marriage. The particulars of the grounds for divorce are outlined as follows:1. Irretrievable breakdown of marriage;2. Desertion;
3. At the hearing thereof, the petitioner relied on her petition and verifying affidavit on record as evidence in support of the petition for the divorce. Notably, the petitioner averred that the contents of the petition remained true as at the date of 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.
5. The applicable law is Section 66 of the Act(dissolution of Civil marriage) 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. Exception depravity by the other spouse4. Desertion by the other spouse5. 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 section 65 of the Act. I have also noted the length of the physical separation of the couple herein(2013 to date), the levels of antagonism between the parties and relied on the reasoning of the court inJSM vs ENB (2015). With respect to intention to salvage the unio, I have noted the unequivocal terms of para 8 of the petition on lack of such intention. The reasoning of the court in ROK V MJBand 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 August 30, 2022 on the following terms:1. The marriage between the two be 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 MAGISTRATEJUDGMENT DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH MARCH 2023 IN THE ABSENCE OF THE PARTIES AT 1434HRS.Court Assistant: Benjamin Kombe.