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MagistrateAllowedPetition dated 27th February 2017 (Divorce Cause)· [2023] KEMC 117 (KLR)
SWW v JMM (Divorce Cause 150 of 2017) [2023] KEMC 117 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan magistrate dissolved a long-dead marriage, confirming courts will not force two adults to stay married against their will.
What this practically means
#Executive summary
#The petitioner, SWW, petitioned for divorce from the respondent, JMM, on the grounds of irretrievable breakdown of the marriage and desertion. The marriage was solemnized on 4th September 1998 in Kenya; the parties are both domiciled in Kenya and have no issues from the union. The respondent was served with the petition and annexures but neither entered appearance nor filed a response. The petitioner then applied to proceed undefended, served that application on the respondent, and the matter proceeded undefended. At the hearing the petitioner relied on her petition and verifying affidavit, averring that the contents remained true, and prayed for dissolution of the marriage. The court framed the sole issue as whether the marriage merited a divorce order under the Marriage Act, 2014, and reviewed s.66, which permits divorce on grounds including desertion for at least three years and irretrievable breakdown. The magistrate noted the length of physical separation, the parties' express lack of intention to salvage the union, and applied the reasoning in JSM vs ENB, ROK v MJB and TPH v NVS, holding that a court cannot compel parties to remain married where the petitioner has stated she wants the marriage dissolved. The petition dated 27th February 2017 was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute in 30 days, and each party was ordered to bear their own costs, this being a family matter.
Key legal issues
#01
Whether the marriage had irretrievably broken down and desertion justified dissolution under s.66 of the Marriage Act, 2014
Holding
The petition was allowed; the marriage was dissolved on the grounds of irretrievable breakdown and desertion.
Reasoning
The court considered the grounds pleaded in the petition, the length of physical separation, and the parties' express lack of intention to salvage the union. Relying on s.66 of the Marriage Act, 2014 and prior decisions including JSM vs ENB and ROK v MJB and TPH v NVS, the magistrate held that a court cannot force two adults to remain married where there is no love between them.
p. 2
Legal principles established
#- A court cannot compel parties to remain married where the petitioner has categorically stated that the marriage should be dissolved.
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.
- Jurisdiction invoked
- Section 66 of the Marriage Act, 2014 (dissolution of civil marriages)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SWW v JMM (Divorce Cause 150 of 2017) [2023] KEMC 117 (KLR)", Case Analysis (2023). Petition dated 27th February 2017 (Divorce Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/117/eng@2023-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.