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MagistratePartially AllowedPetition dated 21st January 2022· [2023] KEMC 137 (KLR)

AN v SG (Divorce Cause E158 of 2022) [2023] KEMC 137 (KLR)

Magistrates' Court
29 May 2023
AAADUKE JEAL PRAXADES ATIENO
682 words in judgment
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The bottom line

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A Nairobi court granted a divorce after five years of separation but refused alimony because the wife provided no financial evidence.

What this practically means

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Executive summary

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The petitioner, AN, petitioned on 21st January 2022 for divorce from the respondent, SG, on the grounds of adultery, cruelty and irretrievable breakdown of the marriage. The parties, both domiciled in Kenya, married in church on 11th December 2004 and have two children. The respondent was served, entered appearance and filed an answer; the petition proceeded defended. At the hearing the petitioner relied on the petition and pleadings as evidence, maintaining their contents remained true, while the respondent testified and likewise prayed for divorce and alimony. The issue for determination was whether the marriage merited dissolution under s.65 of the Marriage Act, 2014. The court, applying that provision, noted five years of physical separation, the antagonism between the parties, and the petitioner's unequivocal statement of no intention to salvage the union. Relying on the reasoning in JSM vs ENB [2015] and ROK v MJB and TPH v NVS (2017 eKLR), the magistrate held the court cannot compel two adults to remain married absent love, and allowed the petition. The marriage was dissolved, with decree nisi to be made absolute in 30 days. However, the claim for alimony failed: no statement of means, bank statements, pay-slips or documentary proof of the financial trail was on record, so the court could not ascertain dependency and made no award. As a family matter, each party was ordered to bear their own costs. Judgment was delivered virtually at Nairobi on 29th May 2023 by Senior Resident Magistrate Aduke Jeal Praxades Atieno.

Key legal issues

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01

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

Holding

The petition is allowed on the ground of irretrievable breakdown of the marriage

Reasoning

The court considered the grounds pleaded under s.65 and their contribution to the irretrievable breakdown of the marriage. It noted five years of physical separation, the levels of antagonism between the parties, and the petitioner's unequivocal lack of intention to salvage the union. Relying on prior authority, it held the court cannot force two adults to live together absent love, and granted the divorce.

p. 2
02

Whether alimony should be awarded to the petitioner

Holding

No award of alimony is made for lack of evidence of the parties' financial positions

Reasoning

The petitioner prayed for alimony, but the record contained no affidavit or statement of means, no certified bank statements or pay-slips, and no documentary proof of the financial trail between the parties. The court could not ascertain whether the petitioner was wholly dependent on the respondent, and declined to decide on incomplete information.

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 dissolve 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 own costs

Authorities

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Legislation

  • The Marriage Acts.65

Cases cited (3)

  • JSM vs ENB
    [2015]
  • ROK v MJB
    2017 eKLR
  • TPH v NVS
    2017 eKLR
Jurisdiction invoked
The Marriage Act, 2014, s.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, "AN v SG (Divorce Cause E158 of 2022) [2023] KEMC 137 (KLR)", Case Analysis (2023). Petition dated 21st January 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/137/eng@2023-05-29

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