[2023] KEMC 231 (KLR)
The court found that the petitioner had established the grounds for dissolution of marriage as provided under section 66 of the Marriage Act, 2014, specifically irretrievable breakdown, desertion, and cruelty. The court noted the parties' physical separation, the petitioner's unequivocal intention not to salvage the...
Source-derived case information.
- Citation
- [2023] KEMC 231 (KLR)
- Parties
- Applicant: SMK; Respondent: OSO
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1057 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Desertion, Cruelty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SMK
Applicant
OSO
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 irretrievable breakdown, desertion, and cruelty have been established.
Ratio Decidendi
The court found that the petitioner had established the grounds for dissolution of marriage as provided under section 66 of the Marriage Act, 2014, specifically irretrievable breakdown, desertion, and cruelty. The court noted the parties' physical separation, the petitioner's unequivocal intention not to salvage the marriage, and the absence of any response or contest from the respondent. Citing relevant case law, the court emphasized that marriage is a voluntary union and it cannot compel parties to remain married against their will. Accordingly, the court granted the orders sought for dissolution of the marriage.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage between the parties is hereby dissolved.
- Decree nisi to issue, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
SMK v OSO (Divorce Cause E1057 of 2022) [2023] KEMC 231 (KLR) (27 June 2023) (Judgment)
Neutral citation: [2023] KEMC 231 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1057 of 2022
JP Aduke, SRM
June 27, 2023
Between
Smk
Petitioner
and
Oso
Respondent
Judgment
1. The Petitioner filed the petition dated 19th August 2022 seeking a divorce on the grounds of desertion, 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 divorce cause 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 the petition on record. In summary, SMK and OSO solemnized their marriage on 18th October 2016 in Kenya at the Office of the Registrar of Marriages. They have one issue together from the union. 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. Desertion;3. Cruelty;
3. At the hearing thereof, the petitioner relied on her petition 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. 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 (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 in JSM vs ENB[2015]. With respect to intention to salvage the union, I have noted the unequivocal terms 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…”
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 19th August 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.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED AND SIGNED THIS 27TH JUNE 2023. In the presence of :Court Assistant: Benjamin KombeCounsel for the Petitioner-Counsel for the Respondent: