GKM v NNP (Divorce Cause E907 of 2021) [2023] KEMC 140 (KLR)

Magistrates' Court (Family Division)

29 May 2023

JAJeal Praxades Atieno Aduke

819 words in judgment

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The bottom line

A Nairobi court dissolved this marriage because both spouses wanted out, but refused alimony claims unsupported by financial evidence.

What this practically means

Executive summary

GKM petitioned on 24th August 2021 for divorce from NNP on grounds of desertion and irretrievable breakdown of their Christian marriage, solemnised in Transzoia on 5th January 2018, with two minor children. The respondent was served, entered appearance, filed an answer, and both parties testified; the respondent prayed for divorce, alimony and maintenance, and raised alleged bigamy by the petitioner. The magistrate framed a single issue: whether the marriage merited divorce under section 65 of the Marriage Act, 2014. Noting the parties' physical separation, antagonism, and their express lack of intention to salvage the union, and applying the reasoning in JSM v ENB and ROK v MJB, the court held it cannot compel two adults to remain married and allowed the petition. The marriage was dissolved and decree nisi ordered to be made absolute in 30 days. However, the alimony claim failed for want of evidence of the parties' means - no statements of means, bank statements, pay-slips or proof of loan recovery deductions were on record - and children's maintenance was remitted to the Children Court, Nairobi, within 30 days to avoid duplicity. The alleged bigamy, though a Penal Code offence, was treated as capable only of classification as adultery under the Act, with the respondent directed to pursue criminal redress. The petitioner was ordered to bear the costs of the petition.

Key legal issues

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

Holding

The petition was allowed; desertion and the particulars pleaded contributed to irretrievable breakdown and neither party intended to salvage the union

Reasoning

The court considered the pleaded grounds of desertion and irretrievable breakdown under section 65 of the Act, the length of physical separation and the levels of antagonism between the parties, relying on JSM v ENB and ROK v MJB. Both parties expressly stated in the petition and answer that they had no intention of salvaging the marriage, and the court held it cannot force two adults to live together where there is no more love between them.

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Whether alimony should be awarded to the respondent

Holding

No award of alimony was made for want of evidence of the parties' means

Reasoning

The respondent prayed for alimony in evidence, citing the cost of catering for the children. However, the court found no affidavit or statement of means, no certified bank statements or pay-slips, and no proof of loan recovery deductions on the respondent's payslip relating to an alleged loan of KES 370,000 advanced to the petitioner. Without this financial information the court could not determine dependency and declined to decide on incomplete information.

p. 2

Legal principles established

A court cannot compel parties to remain married where the marriage has irretrievably broken down and a party seeks dissolution
Bigamy, though a Penal Code offence, can only be classified under adultery as a matrimonial offence under the Marriage Act since it is not expressly provided for

Court orders

1.The marriage between the parties be and is hereby dissolved
2.Decree nisi to issue, to be made absolute in 30 days
3.The respondent to pursue reliefs on maintenance for the children before the Children Court, Nairobi within 30 days
4.The respondent directed to pursue criminal redress on bigamy under the Penal Code, Cap 63 Laws of Kenya
5.The petitioner shall bear the costs of the petition

Authorities

Legislation

The Marriage Acts.65
Penal CodeCap 63

Cases cited (3)

JSM vs ENB
[2015]
ROK v MJB
2017 eklr
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, "GKM v NNP (Divorce Cause E907 of 2021) [2023] KEMC 140 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/140/eng@2023-05-29

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