FKM v JNM (Divorce Cause E092 of 2022) [2023] KEMC 101 (KLR)

Magistrates' Court (Family Division)

7 March 2023

AAAduke Jeal Praxades Atieno

544 words in judgment

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The bottom line

A Kenyan magistrates' court dissolved a Christian marriage, confirming that courts cannot force unwilling spouses to stay married under the Marriage Act, 2014.

What this practically means

Executive summary

The petitioner F.K.M filed a petition dated 30th November 2021 seeking dissolution of a Christian marriage solemnized on 3rd December 2005 at the Methodist Church in Kenya, on the grounds of cruelty, adultery and irreconcilable differences. The parties have three children, are both domiciled in Kenya, and the petitioner averred there was no intention of salvaging the marriage. The respondent was duly served with the petition and with a subsequent application to have the petition proceed undefended, but neither entered appearance nor filed a response, and the proceedings accordingly proceeded undefended. At the hearing the petitioner relied on the petition and pleadings on record as evidence. The court framed a single issue: whether the marriage merited an order of divorce under the Marriage Act, 2014. Applying section 65 of the Act, the magistrate considered the particulars of the grounds and their contribution to the irretrievable breakdown of the marriage, noted the length of the parties' physical separation, and relied on the reasoning in JSM v ENB [2015] and ROK v MJB and TPH v NVS [2017] eKLR, observing that a court cannot compel parties to remain married where the petitioner has categorically stated an intention to dissolve the union. The petition was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute after 30 days, and each party was ordered to bear their own costs as a family matter. Judgment was delivered on 7th March 2023.

Key legal issues

Whether the marriage merits dissolution under section 65 of the Marriage Act, 2014

Holding

The petition was allowed; the grounds of cruelty, adultery and irreconcilable differences contributed to the irretrievable breakdown of the marriage, and the parties had no intention of salvaging the union.

Reasoning

The court considered the particulars of the grounds outlined in the petition and their contribution to the irretrievable breakdown contemplated under section 65. It noted the length of physical separation and the parties' unequivocal lack of intention to salvage the union, relying on the reasoning in JSM v ENB [2015] and ROK v MJB and TPH v NVS [2017] eKLR, holding that a court cannot force two adults to live together where there is no more love between them.

p. 2

Legal principles established

A court cannot compel parties to remain married where the petitioner has categorically stated an intention to dissolve the marriage

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

Authorities

Legislation

The Marriage ActSection 65

Cases cited (2)

JSM v ENB
[2015]
ROK v MJB and TPH v NVS
2017 eKLR

Jurisdiction invoked: Section 65 of the Marriage Act, 2014 (dissolution of Christian marriages)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "FKM v JNM (Divorce Cause E092 of 2022) [2023] KEMC 101 (KLR)", Case Analysis (2023). Petition dated 30th November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/101/eng@2023-03-07

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