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MagistrateAllowedPetition dated April 6, 2021· [2023] KEMC 103 (KLR)

JKM v ENM (Divorce Cause E370 of 2021) [2023] KEMC 103 (KLR)

Magistrates' Court
23 February 2023
AAAduke Jeal Praxades Atieno
556 words in judgment
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The bottom line

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A Nairobi magistrates' court granted a divorce, confirming Kenyan courts cannot force couples to stay married when one spouse clearly wants out.

What this practically means

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Executive summary

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The petitioner, JKM, filed a petition dated April 6, 2021 seeking divorce from the respondent, ENM, on the grounds of irretrievable breakdown of the marriage, cruelty and desertion. Both parties, domiciled in Kenya, solemnized their marriage in a church ceremony in Kenya on December 18, 2010 and have three children. The respondent was served, entered appearance and filed an answer, but was absent at the hearing; defence counsel closed the defence case without calling witnesses. The petitioner relied on the petition and pleadings on record, affirming that the contents remained true at the hearing, and asked that the petition be allowed as prayed. The court framed a single issue: whether the marriage merited an order of divorce under section 65 of the Marriage Act, 2014, which lists adultery, cruelty, exceptional depravity, desertion for at least three years, and irretrievable breakdown as grounds for dissolution of Christian marriages. Considering the particulars pleaded, the length of physical separation, the high levels of antagonism between the parties, and paragraph 18 of the petition confirming no intention to salvage the union, and applying the reasoning in JSM v ENB [2015], ROK v MJB and TPH v NVS [2017] eKLR, the magistrate held that a court cannot compel two adults to remain married where the petitioner categorically seeks dissolution. The petition was allowed: the marriage was dissolved, decree nisi to be made absolute in 30 days, and each party was ordered to bear their own costs as a family matter.

Key legal issues

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01

Whether the marriage between the petitioner and respondent should be dissolved under section 65 of the Marriage Act, 2014

Holding

The court allowed the petition on the ground of irretrievable breakdown of the marriage, considering the grounds pleaded, the length of physical separation, and the parties' lack of intention to salvage the union.

Reasoning

The court considered the particulars of the grounds in the petition and their contribution to the irretrievable breakdown contemplated under section 65 of the Marriage Act. It noted the length of physical separation and the high levels of antagonism between the parties, relying on the reasoning in JSM v ENB [2015]. It also took account of the petitioner's unequivocal statement in paragraph 18 of the petition that there was no intention to salvage the union, and applied the reasoning in ROK v MJB and TPH v NVS that marriage is a voluntary union which a court cannot compel parties to remain in.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where a 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 Act, 2014s.65

Cases cited (3)

  • JSM v ENB
    [2015]
  • ROK v MJB
    null
  • TPH v NVS
    [2017] eKLR
Jurisdiction invoked
Section 65 of the Marriage Act, 2014 (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, "JKM v ENM (Divorce Cause E370 of 2021) [2023] KEMC 103 (KLR)", Case Analysis (2023). Petition dated April 6, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/103/eng@2023-02-23

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