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MagistrateAllowedNot stated on the face of the judgment (petition dated 30th June 2022)· [2023] KEMC 139 (KLR)

HWA v GA (Divorce Cause E806 of 2022) [2023] KEMC 139 (KLR)

Magistrates' Court (Family Division)
2 May 2023
AAAduke Jeal Praxades Atieno
544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court dissolved a 24-year marriage, confirming Kenyan courts cannot force spouses to stay married when it has irretrievably broken down.

What this practically means

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Executive summary

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The petitioner, HWA, petitioned by a petition dated 30th June 2022 for divorce from the respondent, GA, on the ground of irretrievable breakdown of the marriage. The parties, both domiciled in Kenya, solemnized their marriage in Kenya on 2nd October 1999 and had four children. The respondent was served, entered appearance and filed an answer, but at the hearing the respondent's counsel called no witnesses and closed the respondent's case. The petitioner relied on the petition and pleadings on record, averring that the contents remained true at the date of the hearing. The sole issue was whether the marriage merited dissolution under the Marriage Act, 2014. The court examined s.65 of the Act, which permits divorce on grounds including adultery, cruelty, exceptional depravity, desertion for at least three years, and irretrievable breakdown of the marriage. Considering the particulars pleaded, the length of physical separation, the levels of antagonism between the parties and the express averment that neither intended to salvage the union, and applying the reasoning in JSM vs ENB [2015], ROK v MJB and TPH v NVS (2017) eKLR, the magistrate held the court could not compel two adults to remain married where love had ended. The petition was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute in 30 days, and each party was to bear their own costs.

Key legal issues

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01

Whether the marriage had irretrievably broken down under s.65 of the Marriage Act, 2014

Holding

The petition was allowed on the ground of irretrievable breakdown of the marriage.

Reasoning

The court considered the particulars of the grounds in the petition and their contribution to the breakdown contemplated under s.65 of the Act. It noted the length of physical separation, the levels of antagonism between the parties, and the unequivocal terms of para 8 of the Petition showing no intention to salvage the union. Relying on the reasoning in JSM vs ENB [2015], ROK v MJB and TPH v NVS (2017) eKLR, the court held it could not force two adults to live together where there is no more love between them.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has categorically stated the marriage should be dissolved; irretrievable breakdown under s.65 of the Marriage Act justifies divorce.

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 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, "HWA v GA (Divorce Cause E806 of 2022) [2023] KEMC 139 (KLR)", Case Analysis (2023). Not stated on the face of the judgment (petition dated 30th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/139/eng@2023-05-02

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