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MagistrateAllowedPetition dated January 17, 2023 (divorce petition)· [2023] KEMC 26 (KLR)

AO v EKM (Divorce Cause E053 of 2023) [2023] KEMC 26 (KLR)

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

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A Kenyan court granted a divorce on grounds of desertion and irretrievable breakdown, confirming it cannot force two adults to stay married.

What this practically means

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Executive summary

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The petitioner, AO, petitioned by a petition dated January 17, 2023 for the dissolution of his civil marriage to the respondent, EKM, solemnized on June 28, 2017 at the Office of the Attorney General in Kenya, on the grounds of desertion and irretrievable breakdown of the marriage. Both parties are domiciled in Kenya. The respondent was served with the petition and annexures but neither entered appearance nor filed a response. The petitioner then applied to have the petition proceed undefended; service of that application was also effected, and the proceedings accordingly went undefended. At the hearing, the petitioner relied on the petition and verifying affidavit as evidence in chief, averring that the contents remained true at the hearing, and prayed for dissolution of the marriage. The court framed a single issue: whether the marriage merits an order of divorce under the Marriage Act, 2014. Applying section 66 of the Act, which permits divorce on grounds including desertion for at least three years and irretrievable breakdown, and noting the physical separation and the parties' lack of intention to salvage the union, the magistrate relied on JSM v ENB, ROK v MJB and TPH v NVS, adopting the reasoning that a court cannot compel parties to remain married where the petitioner seeks dissolution. The petition was allowed: the marriage was dissolved, decree nisi to be made absolute in 30 days, with each party bearing their own costs as a family matter.

Key legal issues

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01

Whether the marriage between the petitioner and respondent merits dissolution under section 66 of the Marriage Act, 2014

Holding

The petition was allowed; the marriage was dissolved on the grounds of desertion and irretrievable breakdown of the marriage.

Reasoning

The court considered the particulars of the grounds in the petition and their contribution to the irretrievable breakdown contemplated under section 66 of the Act. It noted the length of physical separation, the parties' unequivocal lack of intention to salvage the union, and relied on prior decisions holding that a court cannot compel parties to remain married where the petitioner seeks dissolution. The proceedings were undefended, with the respondent served but neither entering appearance nor responding.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has categorically stated they want the marriage dissolved; marriage is a voluntary union.

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 own costs
Jurisdiction invoked
Section 66 of the Marriage Act, 2014 (dissolution of civil 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, "AO v EKM (Divorce Cause E053 of 2023) [2023] KEMC 26 (KLR)", Case Analysis (2023). Petition dated January 17, 2023 (divorce petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/26/eng@2023-11-23

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