VRL v BGK (Divorce Cause E639 of 2022) [2023] KEMC 156 (KLR)

Magistrates' Court (Family Division)

31 July 2023

JAJEAL PRAXADES ATIENO ADUKE

566 words in judgment

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The bottom line

A Nairobi court granted a wife an uncontested divorce, ruling it cannot force two adults to stay married once she clearly wants out.

What this practically means

Executive summary

The petitioner filed a petition dated 31st May 2022 seeking divorce from the respondent on the grounds of cruelty, adultery, and irreconcilable differences/irretrievable breakdown of the marriage. The parties, VRL and BGK, solemnized their marriage in Kenya at the Office of the Attorney General, are intermittently domiciled in Kenya, and have two children. The respondent was served with the petition but never entered appearance; the court allowed an application for the matter to proceed as an undefended suit, and the proceedings were heard undefended. At the hearing, the petitioner relied on the petition and pleadings on record, averring that their contents remained true. The court framed one issue: whether the marriage merited dissolution under the Marriage Act, 2014. It considered s.69 of the Act, the pleaded grounds, the length of physical separation between the couple, the levels of antagonism between them, and their unequivocal lack of 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 court held that it cannot compel parties to remain married where the petitioner has categorically stated she wants the marriage dissolved. The petition was allowed: the marriage was dissolved, decree nisi was ordered to issue and be made absolute in 30 days, and, as a family matter, each party was ordered to bear their own costs. Judgment was signed at Nairobi on 31st July 2023.

Key legal issues

Whether the marriage had irretrievably broken down so as to warrant dissolution under the Marriage Act, 2014

Holding

The petition was allowed; the grounds of cruelty, adultery and irretrievable breakdown, together with the parties' physical separation, antagonism and lack of intention to salvage the marriage, justified dissolution.

Reasoning

The court considered the grounds pleaded in the undefended petition and how they contributed to the irretrievable breakdown contemplated under s.69 of the Marriage Act. It noted the length of physical separation, the levels of antagonism between the parties, and their unequivocal lack of intention to salvage the union. Relying on prior reasoning that marriage is voluntary and cannot be forced on unwilling adults, the court dissolved the marriage.

p. 2

Legal principles established

A court cannot compel parties to remain married where the petitioner has clearly expressed the desire to dissolve the marriage and there is no intention to salvage the union.

Court orders

1.The marriage between the parties is dissolved
2.Decree nisi to issue, to be made absolute in 30 days
3.Each party to bear their own costs

Authorities

Legislation

The Marriage Act, 2014s.69

Cases cited (3)

JSM vs ENB
[2015]
ROK v MJB
2017 eKLR
TPH v NVS
2017 eKLR

Jurisdiction invoked: The Marriage Act, 2014, s.69 (dissolution of marriages)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "VRL v BGK (Divorce Cause E639 of 2022) [2023] KEMC 156 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/156/eng@2023-07-31

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