IMB v EKM (Divorce Cause E1341 of 2021) [2023] KEMC 159 (KLR)

Magistrates' Court (Family Division)

6 June 2023

JAJeal Praxades Atieno Aduke

549 words in judgment

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The bottom line

A Kenyan magistrate dissolved a long-separated couple's marriage, confirming courts cannot force spouses to stay married once love has truly ended.

What this practically means

Executive summary

This was an undefended divorce petition dated 21st December 2021 in which the petitioner, IMB, sought dissolution of his marriage to the respondent, EKM, on the grounds of desertion and irretrievable breakdown. The parties solemnized their marriage on 27th February 2010 in a church in Nairobi and have one child. Both are domiciled in Kenya. The respondent was served with the petition and with the application to proceed undefended but neither entered appearance nor filed a response, and the matter proceeded undefended. At the hearing the petitioner relied on his petition and verifying affidavit, affirming the contents remained true. The court framed the sole issue as whether the marriage merited divorce under s.65 of the Marriage Act, 2014, which permits dissolution of Christian marriages on grounds including desertion for at least three years and irretrievable breakdown. The court found the particulars of desertion had contributed to the breakdown, noted the lengthy physical separation and the parties' unequivocal lack of intention to salvage the union. Applying JSM v ENB, ROK v MJB and TPH v NVS, the magistrate held that a court cannot compel two adults to remain married where love no longer exists. The petition was allowed: the marriage was dissolved, decree nisi was to issue and become absolute after 30 days, and, as a family matter, each party was ordered to bear their own costs.

Key legal issues

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

Holding

The court allowed the petition on the grounds of desertion and irretrievable breakdown, noting the parties' long physical separation and lack of intention to salvage the union.

Reasoning

The court considered the particulars of the grounds in the petition, the length of physical separation, and the parties' stated lack of intention to salvage the marriage. Relying on s.65 of the Marriage Act and prior decisions including JSM v ENB and ROK v MJB, it held that a court cannot force two adults to remain married where there is no love between them, and granted the divorce sought.

p. 2

Legal principles established

A court cannot compel parties to remain married where the marriage has irretrievably broken down

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.Each party to bear own costs

Authorities

Legislation

The Marriage Acts.65

Cases cited (3)

JSM v 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, "IMB v EKM (Divorce Cause E1341 of 2021) [2023] KEMC 159 (KLR)", Case Analysis (2023). Petition dated 21st December 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/159/eng@2023-06-06

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