[2023] KEMC 192 (KLR)
The court found that the marriage had irretrievably broken down as evidenced by the parties' unequivocal statements and lack of intention to reconcile. The court noted the physical separation, antagonism, and absence of any effort to salvage the union. Applying section 65 of the Marriage Act, 2014, and relevant case...
Source-derived case information.
- Citation
- [2023] KEMC 192 (KLR)
- Parties
- Petitioner: WB; Respondent: TANW
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E879 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Divorce, Irretrievable Breakdown, Desertion, Christian Marriage, Dissolution of Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
WB
Petitioner
TANW
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 irretrievable breakdown and desertion have been established.
Ratio Decidendi
The court found that the marriage had irretrievably broken down as evidenced by the parties' unequivocal statements and lack of intention to reconcile. The court noted the physical separation, antagonism, and absence of any effort to salvage the union. Applying section 65 of the Marriage Act, 2014, and relevant case law, the court held that it cannot compel parties to remain married where the relationship has broken down and both parties seek dissolution. The petition for divorce was therefore allowed, and the marriage was dissolved.
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
21 paragraphs
WB v TANW (Divorce Cause E879 of 2022) [2023] KEMC 192 (KLR) (7 August 2023) (Judgment)
Neutral citation: [2023] KEMC 192 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E879 of 2022
JP Aduke, SRM
August 7, 2023
Between
WB
Petitioner
and
TANW
Respondent
Judgment
1. The Petitioner filed the petition dated 19TH July 2022 seeking a divorce on the grounds of 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 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 answer to petition on record. In summary, WB and TANW solemnized their marriage in Kenya on 21/06/2019 in Church in Kenya. The respondent is domiciled in Kenya while the petitioner is domiciled in United States of America. They have NIL issues together 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 /Irretrievable breakdown of the marriage;2. Desertion;
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 relied on the pleadings on record and prayed for an order of divorce from this court.
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 the Petition and Answer to Petition on lack of such intention. The reasoning of the court in ROK v MJB[2017] EKLR 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 July 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 AT NAIROBI THIS 07TH AUGUST 2023. In the presence of :1. Court Assistant: Benjamin Kombe2. Counsel for the Petitioner-3. Counsel for the Respondent: