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MagistrateAllowedNot stated in judgment (Petition dated December 20, 2022)

BAO v MOO (Divorce Cause E1552 of 2022) [2023] KEMC 46 (KLR)

Magistrates' Court (Senior Resident Magistrate)
20 November 2023
JAJeal Praxades Atieno Aduke
527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan magistrate granted BAO a divorce, confirming courts cannot force anyone to stay in a broken marriage.

What this practically means

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Executive summary

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The petitioner, BAO, filed a petition dated December 20, 2022 seeking divorce from the respondent, MOO, on the grounds of cruelty, adultery, desertion and irretrievable breakdown of a marriage solemnized on December 28, 2013 in a church in Kenya. The respondent was served with the petition and with a subsequent application to proceed undefended but 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, 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. Section 65 of the Act permits dissolution of a Christian marriage on grounds of adultery, cruelty, exceptional depravity, desertion for at least three years, or irretrievable breakdown. The magistrate considered the pleaded particulars, the length of the parties' physical separation, and their unequivocal lack of intention to salvage the union, applying the reasoning in JSM v ENB, ROK v MJB and TPH v NVS to the effect that marriage is a voluntary union which a court cannot compel parties to maintain. The court allowed the petition, dissolved the marriage, directed that decree nisi issue to be made absolute in 30 days, ordered each party to bear their own costs as a family matter, and closed the file.

Questions the Court framed

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

  1. 1.Whether 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

The petition is allowed; the marriage is dissolved on the ground of irretrievable breakdown, supported by the pleaded particulars of adultery, desertion and cruelty, the parties' separation and their lack of intention to salvage the union.

Reasoning

The court considered the particulars of the grounds outlined in the petition and their contribution to the irretrievable breakdown contemplated under s.65. It noted the length of physical separation, the petitioner's unequivocal statement of no intention to salvage the marriage, and applied the reasoning in JSM v ENB and ROK v MJB, holding that a court cannot force two adults to remain together where there is no more love.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has categorically stated an intention to dissolve the marriage; irretrievable breakdown under s.65 of the Marriage Act justifies divorce.

Court orders

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  1. 1.The marriage between the two be and is hereby dissolved.
  2. 2.Decree nisi do issue to be made absolute in 30 days.
  3. 3.Each party to bear 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); parties domiciled in Kenya

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.

Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated December 20, 2022 before me on the following terms:
p. 2Disposition - petition allowed
The marriage between the two be and is hereby dissolved.
p. 2Final orders - dissolution
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 own costs.
p. 2Costs
"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 nature of marriage

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, "BAO v MOO (Divorce Cause E1552 of 2022) [2023] KEMC 46 (KLR)", Case Analysis (2023). Not stated in judgment (Petition dated December 20, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/46/eng@2023-11-20

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