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MagistrateAllowedNot stated on the face of the judgment (petition dated February 28, 2023)

SAMC v SMM (Divorce Cause E288 of 2023) [2023] KEMC 50 (KLR)

Magistrates' Court (Family Division)
21 November 2023
540 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 the ground that a marriage with no love left cannot be saved, dissolving it despite the other spouse's silence.

What this practically means

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Executive summary

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The petitioner filed a petition dated February 28, 2023 seeking divorce from the respondent on the grounds of cruelty, desertion and irretrievable breakdown of the marriage. The marriage was solemnized on February 20, 2018 at the Office of the Attorney General in Kenya, and 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 for the petition to proceed undefended, and served the respondent with that application as well. The proceedings accordingly proceeded undefended. At the hearing, the petitioner relied on the petition and verifying affidavit as evidence in chief, affirming that the contents remained true at the date of the hearing, and prayed for dissolution of the marriage. The court framed the sole issue as whether the marriage merits an order of divorce under The Marriage Act, 2014, and set out the grounds in s.66, including cruelty, desertion for at least three years, and irretrievable breakdown. Considering the pleaded particulars, the length of the couple's physical separation, the parties' lack of intention to salvage the union, and the reasoning in JSM v ENB, ROK v MJB and TPH v NVS, the court held that it cannot force two adults to live together where there is no more love between them. The petition was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute in 30 days, and each party was to bear their own costs, this being a family matter.

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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Whether the marriage merits dissolution under s.66 of the Marriage Act, 2014

Holding

The petition is allowed on the ground of irretrievable breakdown, supported by the particulars of cruelty and desertion

Reasoning

The court considered the particulars of the grounds pleaded and how they contributed to the irretrievable breakdown contemplated under s.66. It noted the length of physical separation, the parties' lack of intention to salvage the union, and relied on the reasoning in JSM v ENB and ROK v MJB, holding that a court cannot compel two adults to remain married where love no longer exists.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has categorically stated that the marriage should be dissolved

Court orders

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

The bench

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

Wrote the judgment

Jurisdiction invoked
The Marriage Act, 2014, s.66 (dissolution of Civil 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.

Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 28th February 2023
p. 2Dissolution on ground of irretrievable breakdown
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. 2Final orders - costs

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, "SAMC v SMM (Divorce Cause E288 of 2023) [2023] KEMC 50 (KLR)", Case Analysis (2023). Not stated on the face of the judgment (petition dated February 28, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/50/eng@2023-11-21

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