[2023] KEMC 179 (KLR)
The court found that the marriage between the parties had irretrievably broken down as contemplated under section 65 of the Marriage Act, 2014. The evidence established cruelty, adultery, and irreconcilable differences, and both parties expressed no intention to salvage the marriage. The court emphasized that...
Source-derived case information.
- Citation
- [2023] KEMC 179 (KLR)
- Parties
- Applicant: SWW; Respondent: AMS
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E1403 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition for divorce allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Cruelty, Adultery, Christian Marriage, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SWW
Applicant
AMS
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the parties merits an order of divorce under the Marriage Act, 2014.
- 2 Whether the grounds of cruelty, adultery, and irreconcilable differences have been established to warrant dissolution of the marriage.
Ratio Decidendi
The court found that the marriage between the parties had irretrievably broken down as contemplated under section 65 of the Marriage Act, 2014. The evidence established cruelty, adultery, and irreconcilable differences, and both parties expressed no intention to salvage the marriage. The court emphasized that marriage is a voluntary union and cannot be sustained by compulsion where both parties seek dissolution. Accordingly, the petition for divorce was allowed, and the marriage was ordered dissolved.
Court Disposition
petition for divorce 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
23 paragraphs
SWW v AMS (Divorce Cause E1403 of 2022) [2023] KEMC 179 (KLR) (19 June 2023) (Judgment)
Neutral citation: [2023] KEMC 179 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E1403 of 2022
JP Aduke, SRM
June 19, 2023
Between
SWW
Petitioner
and
AMS
Respondent
Judgment
1. The Petitioner filed the petition dated 20th November 2022 seeking a divorce on the ground of irretrievable breakdown of the marriage and cruelty. 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.
2The brief facts of the case are as contained in the petition and the answer to petition on record. In summary, SWW and AMS solemnized their marriage in Church in Kenya on 7th November 1999. Both parties are domiciled in Kenya. They have three issues together from the union. 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. Adultery;
3. 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 11 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 20th November 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 their own costs.
ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY IN COURT THIS 19TH JUNE 2023 AT 11AMIn the presence of :1. Court Assistant: BENJAMIN KOMBE2. Counsel for the Petitioner-3. Counsel for the Respondent: