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MagistrateAllowedPetition dated 30th July 2023· [2023] KEMC 52 (KLR)

CKK v MMM (Divorce Cause E838 of 2023) [2023] KEMC 52 (KLR)

Magistrates' Court (Family Division)
30 November 2023
AAAduke Jeal Praxades Atieno
521 words in judgment
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The bottom line

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A Kenyan court dissolved a Christian marriage on unchallenged evidence of desertion, confirming no one can be forced to stay married.

What this practically means

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Executive summary

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The petitioner filed an undefended petition dated 30th July 2023 seeking dissolution of her Christian marriage to the respondent on the grounds of desertion and irretrievable breakdown of the marriage. The parties, both domiciled in Kenya, solemnized their marriage on 1st September 2007 in a church ceremony in Kenya. Service of the petition, and of a subsequent application to proceed undefended, was effected on the respondent, who neither entered appearance nor filed a response, and the matter proceeded undefended. At the hearing, the petitioner relied on the petition and her verifying affidavit, 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 section 65 of the Marriage Act, 2014, which permits divorce for adultery, cruelty, exceptional depravity, desertion for at least three years, or irretrievable breakdown. Considering the uncontroverted particulars, the length of the parties' physical separation, and the petitioner's unequivocal statement that there was no intention to salvage the union, and applying the reasoning in JSM v ENB [2015], ROK v MJB [2017] eKLR and TPH v Nv [2017] eKLR, the court held that it cannot compel two adults to remain married. The petition was allowed: the marriage was dissolved, decree nisi to issue and become absolute in 30 days, each party bearing their own costs, and the file was closed.

Key legal issues

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01

Whether desertion and irretrievable breakdown justify dissolution of the marriage under section 65 of the Marriage Act, 2014

Holding

The petition was allowed; the court found the grounds contemplated under section 65 established on the uncontroverted evidence and dissolved the marriage.

Reasoning

The petitioner relied on her petition and verifying affidavit as evidence, and the undefended petition was uncontroverted. The court considered the particulars of the grounds, the length of physical separation of the couple, and the petitioner's unequivocal statement that there was no intention to salvage the union. Relying on prior decisions, it held that a voluntary union cannot be sustained by compulsion where the petitioner seeks dissolution, and granted the divorce with decree nisi absolute after 30 days.

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 have the marriage dissolved.

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.
Jurisdiction invoked
The Marriage Act, 2014, section 65 (dissolution of Christian 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, "CKK v MMM (Divorce Cause E838 of 2023) [2023] KEMC 52 (KLR)", Case Analysis (2023). Petition dated 30th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/52/eng@2023-11-30

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