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MagistrateAllowedNot stated in judgment (petition dated 03rd June 2022)· [2023] KEMC 81 (KLR)

CMJ v JKM (Divorce Cause E663 of 2022) [2023] KEMC 81 (KLR)

Magistrates' Court (Family Division)
21 March 2023
JAJEAL PRAXADES ATIENO ADUKE
553 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner CMJ filed a petition dated 03rd June 2022 seeking dissolution of a civil marriage solemnized with the respondent JKM on 25th July 2014 at the registrar's office, on the grounds of cruelty, desertion and irretrievable breakdown of the marriage. The parties have no children and both are domiciled in Kenya. The respondent was served, entered appearance and filed an answer, and the matter proceeded as a defended cause. At the hearing, the petitioner relied on the petition and pleadings on record, affirming their contents remained true, while the respondent also testified and prayed for an order of divorce. The court framed a single issue: whether the marriage merited an order of divorce under the Marriage Act, 2014. Applying section 66 of the Act, which lists adultery, cruelty, exceptional depravity, desertion for at least three years, and irretrievable breakdown as grounds for dissolution of a civil marriage, the magistrate considered the particulars pleaded, the parties' physical separation since 2016, the levels of antagonism, and the unequivocal position in both the petition and the answer that neither party intended to salvage the union. Relying on the reasoning in JSM v ENB [2015] and ROK v MJB and TPH v NVS [2017] eKLR, the court held that a voluntary union cannot be sustained by compulsion where a party has categorically sought dissolution. The petition was allowed: the marriage was dissolved, decree nisi to issue and be made absolute in 30 days, with each party bearing their own costs as is customary in family matters.

Key legal issues

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01

Whether the civil marriage solemnized on 25th July 2014 merited dissolution under section 66 of the Marriage Act, 2014

Holding

The petition for divorce on grounds of cruelty, desertion and irretrievable breakdown was allowed.

Reasoning

The court considered the particulars of the grounds pleaded and their contribution to the irretrievable breakdown contemplated under section 66 of the Act. It noted the physical separation of the parties since 2016, the levels of antagonism between them, and the unequivocal statements in both the petition and the answer that neither party intended to salvage the union. Relying on prior reasoning that marriage is a voluntary union which a court cannot force adults to maintain, the magistrate concluded the marriage had irretrievably broken down.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has categorically sought dissolution of the marriage.

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 their own costs.

Authorities

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Legislation

  • The Marriage ActSection 66

Cases cited (3)

  • JSM v ENB
    [2015]
  • ROK v MJB
    [2017] eKLR
  • TPH v NVS
    [2017] eKLR
Jurisdiction invoked
The Marriage Act, 2014, section 66 (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, "CMJ v JKM (Divorce Cause E663 of 2022) [2023] KEMC 81 (KLR)", Case Analysis (2023). Not stated in judgment (petition dated 03rd June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/81/eng@2023-03-21

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