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MagistratePartially AllowedDivorce Cause E932 of 2022· [2023] KEMC 24 (KLR)

CKD v KBKD (Divorce Cause E932 of 2022) [2023] KEMC 24 (KLR)

Magistrates' Court (Family Division)
6 November 2023
AAAduke Jeal Praxades Atieno
676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court granted a divorce because it cannot force adults to stay married, but refused alimony due to missing financial evidence.

What this practically means

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Executive summary

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The petitioner, CKD, petitioned by a petition dated 28th July 2022 for divorce from the respondent, KBKD, on the grounds of cruelty and irretrievable breakdown of a Hindu marriage solemnized in a temple in India on 18th November 2000, both parties being domiciled in Kenya with one child of the union. The respondent was served, entered appearance and filed a response opposing the dissolution. At the hearing the petitioner relied on the petition and pleadings on record, maintaining their contents remained true, while the respondent prayed against an order of divorce. The court framed a single issue: whether the marriage merited dissolution under section 70 of the Marriage Act, 2014, which lists grounds for dissolving Hindu marriages including irretrievable breakdown and cruelty. The court considered the pleaded grounds, the length of the parties' physical separation, and the unequivocal position of both parties that there was no intention to salvage the marriage, applying the reasoning in JSM v ENB [2015], ROK v MJB [2017] and TPH v NVS [2017] eKLR that a court cannot compel parties to remain married. The petition was allowed: the marriage was dissolved, with decree nisi to be made absolute in 30 days, and each party bearing their own costs. Custody and maintenance were left to the Children Court Nairobi, and the alimony prayer was refused for want of evidentiary proof of the parties' means.

Key legal issues

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Whether the Hindu marriage between the parties had irretrievably broken down and merited dissolution under section 70 of the Marriage Act, 2014

Holding

The petition was allowed; the marriage was dissolved on the ground of irretrievable breakdown, supported by the grounds pleaded and the parties' lack of intention to salvage the union

Reasoning

The court considered the particulars of the grounds in the petition and their contribution to the breakdown under section 70, the length of physical separation, and the parties' unequivocal statements that they had no intention of salvaging the marriage. Relying on prior reasoning that a court cannot compel adults to remain married, it granted the divorce with a decree nisi absolute in 30 days.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner seeks dissolution

Court orders

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  1. 1.The marriage between the two 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.The Petitioner is at liberty to file a custody and maintenance suit in respect of the issue of the union before the Children Court Nairobi for appropriate reliefs
  5. 5.No orders granted on the prayer for alimony for want of evidentiary proof

Authorities

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Legislation

  • The Marriage Act, 2014section 70

Cases cited (3)

  • JSM v ENB
    [2015]
  • ROK v MJB
    [2017]
  • TPH v NVS
    [2017] eKLR
Jurisdiction invoked
The Marriage Act, 2014, section 70 (dissolution of Hindu marriages)

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, "CKD v KBKD (Divorce Cause E932 of 2022) [2023] KEMC 24 (KLR)", Case Analysis (2023). Divorce Cause E932 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/24/eng@2023-11-06

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