[2023] KEMC 117 (KLR)
The court found that the petitioner had established the grounds of irretrievable breakdown and desertion as set out in Section 66 of the Marriage Act, 2014. The evidence showed that the parties had been physically separated for a significant period and had no intention of reconciling. The respondent did not contest...
Source-derived case information.
- Citation
- [2023] KEMC 117 (KLR)
- Parties
- Applicant: SWW; Respondent: JMM
- Court
- Magistrate's Court
- Court Station
- Chief Magistrate's Court (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 150 of 2017
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Desertion, Civil Marriage, Grounds for Divorce
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SWW
Applicant
JMM
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 as required by law.
Ratio Decidendi
The court found that the petitioner had established the grounds of irretrievable breakdown and desertion as set out in Section 66 of the Marriage Act, 2014. The evidence showed that the parties had been physically separated for a significant period and had no intention of reconciling. The respondent did not contest the petition, and the court relied on the petitioner's unchallenged evidence. Citing relevant case law, the court held that marriage is a voluntary union and cannot be sustained by compulsion where one party seeks dissolution. Therefore, 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 SWW and JMM is hereby dissolved.
- Decree nisi to issue and be made absolute in 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
SWW v JMM (Divorce Cause 150 of 2017) [2023] KEMC 117 (KLR) (10 May 2023) (Judgment)
Neutral citation: [2023] KEMC 117 (KLR)
Republic of Kenya
In the Chief Magistrate's Court (Milimani Law Courts)
Divorce Cause 150 of 2017
JP Aduke, SRM
May 10, 2023
Between
SWW
Petitioner
and
JMM
Respondent
Judgment
1. The Petitioner filed the petition dated 27th February 2017 seeking a divorce on the grounds of irretrievable breakdown of the marriage and desertion. 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 DC 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 para 1-9 of the petition on record. In summary, SWW and JMM solemnized their marriage on 4th Sept 1998 in Kenya. They have nil issues together from the union as at the date of conclusion of the hearing before this court. 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. 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 para 8 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 27th February 2017 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 10TH MAY 2023. In the presence of :1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner-3. Counsel for the Respondent: