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Case Brief · caselaw.co.ke
MagistrateAllowedPetition dated 27th January 2023

ENM v PKG (Divorce Cause E134 of 2023) [2023] KEMC 20 (KLR)

Magistrates' Court (Family Division)
20 November 2023
JAJEAL PRAXADES ATIENO ADUKE
555 words in judgment
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The bottom line

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A Nairobi court dissolved a marriage under Kenya's Marriage Act, confirming courts cannot force spouses to stay married when one wants out.

What this practically means

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Executive summary

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The petitioner, ENM, petitioned for divorce from the respondent, PKG, on the grounds of cruelty, desertion and irretrievable breakdown of the marriage. The parties, both domiciled in Kenya, married in church on 15th December 2012. The respondent was served, entered appearance and filed an answer, but was absent at the hearing; the court allowed the petitioner's application to close the defence case, and the petitioner relied on the petition and pleadings on record. The sole issue was whether the marriage merited dissolution under s.65 of the Marriage Act, 2014, which permits divorce on grounds including cruelty, desertion for at least three years and irretrievable breakdown. Considering the particulars pleaded, the length of physical separation, the high levels of antagonism between the parties and the unequivocal position of both the petition and the answer that neither intended to salvage the union, and applying the reasoning in JSM vs ENB [2015], ROK v MJB [2017] eKLR and TPH v NVS [2017], the magistrate held that a court cannot compel two adults to remain married where there is no more love between them. The petition dated 27th January 2023 was allowed: the marriage was dissolved, decree nisi to issue and be made absolute in 30 days, each party to bear their own costs, and the file closed. Judgment was signed at Nairobi on 20th November 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the marriage between the parties merits an order of divorce under The Marriage Act, 2014

Key legal issues

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01

Whether the marriage merits dissolution under s.65 of the Marriage Act, 2014

Holding

Petition allowed on grounds of cruelty, desertion and irretrievable breakdown

Reasoning

The court considered the particulars of the grounds pleaded, the length of physical separation and the high levels of antagonism between the parties, and noted that neither party expressed any intention of salvaging the marriage. Relying on prior divorce decisions, it held that a court cannot force two adults to remain married where there is no more love between them, and granted the decree nisi.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has clearly stated an intention to dissolve the marriage.

Court orders

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  1. 1.The marriage between the parties be and is hereby dissolved
  2. 2.Decree nisi to issue, to be made absolute in 30 days
  3. 3.Each party to bear their own costs
  4. 4.File closed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JA
majority

Wrote the judgment

Jurisdiction invoked
The Marriage Act, 2014, s.65 (dissolution of Christian marriages)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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
p. 2Voluntary union - impossibility of compelling parties to stay married
the marriage between the two be and is hereby dissolved.
p. 2Final orders - dissolution of marriage
Decree nisi do issue to be made absolute in 30 days.
p. 2Final orders - decree nisi
This being a family matter, each party to bear their own costs.
p. 2Costs

Issues in the judgment

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minor

The judgment does not state the case file number of the petition, only the date it was filed (27th January 2023).

minor

The court adopts reasoning from authorities whose proper citations are incompletely given (JSM vs ENB lacks eKLR citation; TPH v NVS given in lower case 'eklr').

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ENM v PKG (Divorce Cause E134 of 2023) [2023] KEMC 20 (KLR)", Case Analysis (2023). Petition dated 27th January 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/20/eng@2023-11-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.