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MagistrateAllowedDivorce Cause (as per petition dated 2nd December 2021; number not stated in judgment)· [2023] KEMC 170 (KLR)

JO v TNM (Divorce Cause E383 of 2022) [2023] KEMC 170 (KLR)

Magistrates' Court (Family Division)

29 August 2023

AAAduke Jeal Praxades Atieno

550 words in judgment

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The bottom line

A Kenyan court dissolved a marriage on grounds of cruelty and irretrievable breakdown, confirming judges cannot force couples to stay married.

What this practically means

Executive summary

An undefended matrimonial cause in which JO (petitioner) petitioned for divorce from TNM (respondent) on the grounds of cruelty and irretrievable breakdown of a marriage celebrated in church in Kenya on 9th November 2019, with no issues of the union and both parties domiciled in Kenya. Service on the respondent was effected by return of service, but the respondent neither entered appearance nor filed a response; the petitioner's application to proceed undefended was also duly served, and the cause proceeded undefended. At the hearing, the petitioner relied on the petition and verifying affidavit, affirming the contents remained true and praying for dissolution of the marriage. The court framed a single issue: whether the marriage merited divorce under the Marriage Act, 2014, and set out the grounds under s.65. Applying JSM v ENB [2015], ROK v MJB [2017] EKLR and TPH v NVS [2017] eKLR, the magistrate noted the physical separation, the absence of any intention to salvage the union as pleaded in the petition, and held that a court cannot compel two adults to remain married where there is no longer love between them. The petition dated 2nd December 2021 was allowed: the marriage was dissolved, decree nisi was to issue and be made absolute in 30 days, and, as a family matter, each party was ordered to bear their own costs.

Key legal issues

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

Holding

The petition is allowed; the marriage is dissolved on the ground of irretrievable breakdown, supported by cruelty and the parties' separation and lack of intention to salvage the union

Reasoning

The court considered the grounds pleaded in the petition and their contribution to the irretrievable breakdown contemplated under s.65 of the Act. It noted the length of physical separation, relied on the reasoning in JSM v ENB [2015], and noted the petitioner's unequivocal averment that there was no intention to salvage the marriage. Citing ROK v MJB and TPH v NVS, the court held it cannot force two adults to remain married where love no longer exists, and granted the dissolution with decree nisi absolute after 30 days.

p. 2

Legal principles established

A court cannot compel parties to remain married where the petitioner has stated the marriage should be dissolved; irretrievable breakdown under s.65 of the Marriage Act suffices

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 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

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "JO v TNM (Divorce Cause E383 of 2022) [2023] KEMC 170 (KLR)", Case Analysis (2023). Divorce Cause (as per petition dated 2nd December 2021; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/170/eng@2023-08-29

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