[2023] KEMC 166 (KLR)
The court found that the petitioner had established the grounds for divorce as set out in section 65 of the Marriage Act, 2014, including cruelty, desertion, adultery, and irretrievable breakdown. The court noted the parties' physical separation, the absence of any intention to salvage the marriage, and the...
Source-derived case information.
- Citation
- [2023] KEMC 166 (KLR)
- Parties
- Applicant: RWM; Respondent: JNM
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E547 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed; marriage dissolved.
- Judges
- JP Aduke
- Legal Topics
- Divorce, Dissolution of Marriage, Cruelty, Desertion, Adultery, Irretrievable Breakdown
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RWM
Applicant
JNM
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, desertion, adultery, and irretrievable breakdown have been established.
Ratio Decidendi
The court found that the petitioner had established the grounds for divorce as set out in section 65 of the Marriage Act, 2014, including cruelty, desertion, adultery, and irretrievable breakdown. The court noted the parties' physical separation, the absence of any intention to salvage the marriage, and the voluntary nature of marriage. The respondent's failure to defend the petition further supported the petitioner's case. The court concluded that it could not compel the parties to remain married where the petitioner had unequivocally sought dissolution. Accordingly, the marriage was dissolved, and a decree nisi was issued to be made absolute in 30 days.
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
22 paragraphs
RWM v JNM (Divorce Cause E547 of 2022) [2023] KEMC 166 (KLR) (20 June 2023) (Judgment)
Neutral citation: [2023] KEMC 166 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E547 of 2022
JP Aduke, SRM
June 20, 2023
Between
RWM
Petitioner
and
JNM
Respondent
Judgment
1The Petitioner filed the petition dated 11th May 2022 seeking a divorce on the grounds of cruelty, 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.
2The brief facts of the case are as contained in the petition on record. In summary, RWM and JNM solemnized their marriage on 16th December 2017 in Church in Satelitte/Dagoretii in Kenya. The parties have NIL issues together/ from the union. Both the Petitioner and respondent 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. Cruelty;2. Desertion;3. Adultery;4. Irretrievable breakdown of the marriage;
3At the hearing thereof, the petitioner relied on the petition, witness statement and verifying affidavit 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 and prayed for an order of dissolution of the marriage.
4The 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).
5The applicable law is s.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 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.
6I 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 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 12 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…”
7Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 11th May 2022 before me 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.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED, DELIVERED AND SIGNED THIS 20TH JUNE 2023 AT 11. 50AM.In the presence of:Court Assistant: BENJAMIN KOMBECounsel for the Petitioner- N/ACounsel for the Respondent: N/A