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MagistrateAllowedNot stated in judgment (petition dated 7th September 2022)· [2023] KEMC 203 (KLR)

AWG v SMNT (Divorce Cause E1077 of 2022) [2023] KEMC 203 (KLR)

Magistrates' Court (Family Division)
7 August 2023
JAJeal Praxades Atieno Aduke
559 words in judgment
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The bottom line

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A Nairobi court granted a Christian divorce, ruling judges cannot force two adults to stay married when the relationship has irretrievably broken down.

What this practically means

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Executive summary

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The petitioner, AWG, petitioned for divorce from the respondent, SMNT, on grounds of adultery, cruelty, and irretrievable breakdown of the marriage, pursuant to a petition dated 7th September 2022. The parties, both domiciled in Kenya, solemnised their marriage in church in Kenya on 9th November 2019 and had no children. The respondent was served, entered appearance, and filed an answer to the petition, so the matter proceeded defended. At the hearing, both parties relied on the pleadings on record; the petitioner affirmed the petition's contents and prayed for divorce as prayed, while the respondent likewise prayed for an order of divorce. The issue for determination was whether the marriage merited an order of divorce under the Marriage Act, 2014. The court considered section 65 of the Act, which permits dissolution of Christian marriages on grounds including adultery, cruelty, exceptional depravity, desertion for at least three years, and irretrievable breakdown. Relying on the length of the parties' physical separation, the levels of antagonism between them, the reasoning in JSM vs ENB, ROK v MJB and TPH v NVS, and the parties' unequivocal lack of intention to salvage the union, the magistrate held that the court cannot compel two adults to remain married where love no longer exists. The petition was allowed: the marriage was dissolved, decree nisi to issue and be made absolute in 30 days, with each party bearing their own costs as a family matter.

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, evidenced by separation, antagonism, and both parties' express lack of intention to salvage the union.

Reasoning

The court considered the grounds pleaded under s.65 (adultery, cruelty, exceptional depravity, desertion, irretrievable breakdown) and found the marriage irretrievably broken down, relying on the length of physical separation, levels of antagonism, and the parties' unequivocal statements of no intention to salvage the union, following precedent that a court cannot compel adults to remain married.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the marriage has irretrievably broken down and a party seeks dissolution

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 their own costs

Authorities

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Legislation

  • Marriage ActSection 65

Cases cited (3)

  • JSM vs 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

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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, "AWG v SMNT (Divorce Cause E1077 of 2022) [2023] KEMC 203 (KLR)", Case Analysis (2023). Not stated in judgment (petition dated 7th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/203/eng@2023-08-07

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