[2023] KEMC 180 (KLR)
The court found that the marriage between the petitioner and respondent had irretrievably broken down as contemplated under section 65 of the Marriage Act, 2014. Both parties had no intention of salvaging the marriage, and the evidence demonstrated prolonged separation and antagonism. The court relied on established...
Source-derived case information.
- Citation
- [2023] KEMC 180 (KLR)
- Parties
- Applicant: RKK; Respondent: TW
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1182 of 2020
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, 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
RKK
Applicant
TW
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties has irretrievably broken down under the Marriage Act, 2014.
- 2 Whether the petitioner has established sufficient grounds for dissolution of the marriage.
- 3 Whether the court should grant a decree of divorce based on the evidence presented.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent had irretrievably broken down as contemplated under section 65 of the Marriage Act, 2014. Both parties had no intention of salvaging the marriage, and the evidence demonstrated prolonged separation and antagonism. The court relied on established legal principles that marriage is a voluntary union and that courts cannot compel unwilling parties to remain married. Accordingly, the court allowed the petition for divorce, ordered the dissolution of the marriage, and directed that a decree nisi issue to be made absolute in 30 days. Each party was ordered to bear their own costs.
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
RKK v TW (Divorce Cause E1182 of 2020) [2023] KEMC 180 (KLR) (5 June 2023) (Judgment)
Neutral citation: [2023] KEMC 180 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1182 of 2020
JP Aduke, SRM
June 5, 2023
Between
RKK
Petitioner
and
TW
Respondent
Judgment
1. The Petitioner filed the petition dated 19th August 2021 seeking a divorce on the ground of 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 the answer to petition on record. In summary, RKK and TW solemnized their marriage in Church in Kenya on 15th February 2014. Both parties are domiciled in Kenya. They have two issues together, all minors as at the date of writing this judgment. 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;
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.
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.65 of the Act (dissolution of Christian 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.65 of the Act. I have also noted the length of physical separation of the couple herein, 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 7 and 10 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 19th August 2021 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, DATED AND DELIVERED VIRTUALLY IN COURT AT NAIROBI THIS 05TH JUNE 2023 AT 12. 15PMIn the presence of :1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner-3. Counsel for the Respondent: