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MagistrateAllowedNot stated in the judgment· [2023] KEMC 32 (KLR)
SAS v SGO (Divorce Cause E504 of 2022) [2023] KEMC 32 (KLR)
Magistrates' Court (Family Division)
28 November 2023
540 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan magistrate dissolved an undefended civil marriage, confirming that courts cannot force spouses to stay married once one partner wants out.
What this practically means
#Executive summary
#This was an undefended divorce petition filed on 01st April 2022 by SAS against SGO, seeking dissolution of their civil marriage on the grounds of cruelty, adultery and irretrievable breakdown of the marriage. The parties solemnized their marriage on 22nd May 2019 at the Office of the Attorney General in Kenya and both are domiciled in Kenya. Service of the petition and of the application to proceed undefended was proved by returns of service, but the respondent neither entered appearance nor filed a response, and the matter proceeded undefended. At the hearing the petitioner relied on the petition and verifying affidavit as evidence in chief, affirming the contents remained true, 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, whose section 66 permits divorce on grounds including adultery, cruelty, desertion and irretrievable breakdown. Considering the pleaded grounds, the length of physical separation, and the parties' unequivocal lack of intention to salvage the union, and drawing on the reasoning in JSM v ENB, ROK v MJB and TPH v NVS, the magistrate held that a court cannot force two adults to remain married where the petitioner has categorically stated she wants the marriage dissolved. The petition dated 01st April 2022 was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute in 30 days, and each party was ordered to bear their own costs. Judgment was signed on 28th November 2023.
Key legal issues
#01
Whether the marriage between the petitioner and respondent merits dissolution under s.66 of the Marriage Act, 2014
Holding
The petition was allowed; the marriage was dissolved on the ground of irretrievable breakdown.
Reasoning
The court considered the particulars of cruelty, adultery and irretrievable breakdown pleaded in the petition, the length of physical separation, and the parties' express lack of intention to salvage the union. Relying on prior reasoning in JSM v ENB, ROK v MJB and TPH v NVS, it held a court cannot compel two adults to remain married where the petitioner seeks dissolution.
p. 2
Legal principles established
#- A court cannot compel parties to remain married where the petitioner has stated the marriage should be dissolved; irretrievable breakdown is a ground for divorce under s.66 of the Marriage Act.
Court orders
#- 1.The marriage between the two be and is hereby dissolved
- 2.Decree nisi do issue to be made absolute in 30 days
- 3.Each party to bear own costs
- Jurisdiction invoked
- The Marriage Act, 2014, s.66 (dissolution of civil marriages)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAS v SGO (Divorce Cause E504 of 2022) [2023] KEMC 32 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/32/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.