[2023] KEMC 79 (KLR)
The court found that the marriage between the parties had irretrievably broken down as contemplated under section 69 of the Marriage Act, 2014. Both parties had no intention of salvaging the marriage, and the evidence on record, including the pleadings and testimonies, supported the ground of irretrievable...
Source-derived case information.
- Citation
- [2023] KEMC 79 (KLR)
- Parties
- Applicant: ZH; Respondent: AMV
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause E372 of 2022
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- JP Aduke
- Legal Topics
- Dissolution of Marriage, Irretrievable Breakdown, Customary Marriage, Grounds for Divorce
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ZH
Applicant
AMV
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 grounds for divorce as pleaded have been established.
Ratio Decidendi
The court found that the marriage between the parties had irretrievably broken down as contemplated under section 69 of the Marriage Act, 2014. Both parties had no intention of salvaging the marriage, and the evidence on record, including the pleadings and testimonies, supported the ground of irretrievable breakdown. The court relied on established legal principles that marriage is a voluntary union and that courts cannot compel parties to remain married where there is no mutual desire to continue the relationship. Accordingly, the court allowed the petition and ordered the dissolution of the marriage.
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
21 paragraphs
ZH v AMV (Divorce Cause E372 of 2022) [2023] KEMC 79 (KLR) (2 March 2023) (Judgment)
Neutral citation: [2023] KEMC 79 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Divorce Cause E372 of 2022
JP Aduke, SRM
March 2, 2023
Between
ZH
Petitioner
and
AMV
Respondent
Judgment
1. The Petitioner filed the petition dated 21st March 2022 seeking a divorce on the ground of 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 fact of the case are as contained in para 1-12 of the petition and answer to petition on record. In summary, ZH and AMV solemnized their marriage in Kenya on 17th Sept 2018 at the Office of the Attorney General. Both the respondent and the petitioner are domiciled in Kenya intermittently. They have three issues together, minors as at the date of conclusion of the hearing. 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; 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.69 of the Act (dissolution of Customary 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;4. desertion;5. the irretrievable breakdown of the marriage;6. any valid ground under the Customary Law of the Petitioner;
2. The cabinet secretary may make regulations for the implementation of this section. 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.69 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 8 of the Petition on lack of such intention. The reasoning of the court in ROK v MJBand 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 21st March 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.
JUDGEMENT SIGNED AT NAIROBI THIS 2ND MARCH 2023 IN THE ABSENCE OF THE PARTIES.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEIn the presence of :Court Assistant: Benjamin KombeCounsel for the Petitioner-Counsel for the Respondent: