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MagistrateAllowedNot stated in the judgment (petition dated 16th November 2022)· [2023] KEMC 158 (KLR)

PKR v AMR (Divorce Cause E1385 of 2022) [2023] KEMC 158 (KLR)

Magistrates' Court (Family Division)
17 July 2023
JAJeal Praxades Atieno Aduke
554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court granted a wife a divorce after 28 years of marriage, ruling it cannot force two adults to stay married against their will.

What this practically means

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Executive summary

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This was an undefended petition for divorce filed on 16th November 2022 by PKR against AMR, seeking dissolution of a marriage solemnized on 7th October 1995 in a church in Kenya on the grounds of cruelty, adultery and irretrievable breakdown of the marriage. The respondent was served with the petition and with the petitioner's application to proceed undefended but neither entered appearance nor filed a response, and the matter proceeded undefended. The petitioner relied on the petition, witness statement and verifying affidavit, averring that the contents of the petition remained true at the hearing. The petitioner and respondent are both domiciled in Kenya and have two children from the union. The court framed a single issue: whether the marriage merits an order of divorce under the Marriage Act, 2014. Applying s.65 of the Act, which permits divorce for adultery, cruelty, exceptional depravity, desertion for at least three years, or irretrievable breakdown, the court considered the pleaded grounds and the length of the couple's physical separation, and relied on the reasoning in JSM vs ENB [2015], ROK v MJB [2017] eklr and TPH v NVS [2017] eklr. Noting the petitioner's unequivocal lack of intention to salvage the marriage, the magistrate held that a court cannot compel two adults to remain married. The petition was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute within 30 days, and each party was to bear their own costs.

Key legal issues

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01

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

Holding

The petition was allowed on the grounds of cruelty, adultery and irretrievable breakdown, the court being guided by the parties' separation and lack of intention to salvage the marriage

Reasoning

The court considered the grounds pleaded in the petition and how they contributed to the irretrievable breakdown contemplated under s.65 of the Act. It noted the length of physical separation and the petitioner's unequivocal statement that there was no intention to salvage the union, reasoning that a court cannot force two adults to live together when 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 intention to dissolve the marriage

Court orders

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  1. 1.The marriage between the parties is dissolved
  2. 2.Decree nisi to issue, to be made absolute in 30 days
  3. 3.Each party to bear 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, "PKR v AMR (Divorce Cause E1385 of 2022) [2023] KEMC 158 (KLR)", Case Analysis (2023). Not stated in the judgment (petition dated 16th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/158/eng@2023-07-17

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