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MagistrateAllowedDivorce Petition dated 23rd May 2022· [2023] KEMC 169 (KLR)

ETO v AWE (Divorce Cause E614 of 2022) [2023] KEMC 169 (KLR)

Magistrates' Court (Family Division)
19 June 2023
AAAduke Jeal Praxades Atieno
551 words in judgment
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The bottom line

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A Kenyan court granted an undefended divorce, confirming judges cannot force couples to stay married when one spouse clearly wants out.

What this practically means

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Executive summary

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The Petitioner filed a petition dated 23rd May 2022 seeking a divorce on the grounds of irretrievable breakdown of the marriage and cruelty. The respondent was served but neither entered appearance nor filed a response, and the petition proceeded undefended after the petitioner's application to have it so proceed was served. The parties solemnized their marriage on 21st December 2018 in a church ceremony in Langata, Nairobi; they have no issues from the union, both are domiciled in Kenya, and the petitioner averred there was no intention to salvage the marriage. The sole issue for determination was whether the marriage merited dissolution under the Marriage Act, 2014, whose section 65 permits divorce for adultery, cruelty, exceptional depravity, desertion for at least three years, or irretrievable breakdown. Considering the pleaded grounds, the length of physical separation, and the petitioner's unequivocal statement of no intention to salvage the union, and relying on the reasoning in JSM v ENB, ROK v MJB and TPH v NVS, the court held it could not compel two adults to remain married where there was no more love between them. It allowed the petition, dissolved the marriage, directed that decree nisi issue to be made absolute in 30 days, and ordered each party to bear their own costs as a family matter. Judgment was delivered on 19th June 2023.

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 ground of irretrievable breakdown of the marriage.

Reasoning

The court considered the particulars of cruelty and irretrievable breakdown pleaded in the petition, the length of physical separation, and the parties' lack of intention to salvage the union. Relying on prior reasoning in JSM v ENB, ROK v MJB and TPH v NVS, it held that a court cannot force two adults to live together where there is no longer love between them, and granted the divorce sought undefended.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has categorically stated that the marriage should be dissolved.

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 own costs.

Authorities

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Legislation

  • The Marriage Act, 2014s.65

Cases cited (3)

  • JSM v 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, "ETO v AWE (Divorce Cause E614 of 2022) [2023] KEMC 169 (KLR)", Case Analysis (2023). Divorce Petition dated 23rd May 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/169/eng@2023-06-19

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