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MagistrateAllowedPetition dated 29th September 2022· [2023] KEMC 206 (KLR)

RMK v BNW (Divorce Cause E1163 of 2022) [2023] KEMC 206 (KLR)

Magistrates' Court (Family Division), Nairobi
11 July 2023
AAAduke Jeal Praxades Atieno
537 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court dissolved a broken marriage, confirming that no one can be forced to stay married in Kenya.

What this practically means

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Executive summary

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The petitioner RMK filed a petition dated 29th September 2022 seeking dissolution of her marriage to the respondent BNW on the grounds of adultery, cruelty and irreconcilable differences. The marriage was solemnized on 13th December 2008 at Langata Botanical Gardens in Nairobi, with both parties domiciled in Kenya. The respondent was served, entered appearance and filed an answer to the petition, and the matter proceeded as a defended cause, with both parties relying on their pleadings and testifying. Both parties prayed for divorce. The court framed a single issue: whether the marriage merits an order of divorce under the Marriage Act, 2014. Applying section 65 of the Act, which permits dissolution of Christian marriages on grounds including adultery, cruelty, exceptional depravity, desertion and irretrievable breakdown, the court considered how the pleaded grounds contributed to the irretrievable breakdown of the marriage and noted the length of physical separation. Relying on JSM v ENB [2015], ROK v MJB [2017] eKLR and TPH v NVS [2017] eKLR, the court emphasized that marriage is a voluntary union which it cannot compel parties to remain in where the petitioner clearly seeks dissolution. As neither party intended to salvage the union, the court allowed the petition, dissolved the marriage, ordered that a decree nisi issue to be made absolute in 30 days, and directed that each party bear their own costs, this being a family matter.

Key legal issues

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01

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

Holding

The petition is allowed and the marriage dissolved on the ground of irretrievable breakdown, supported by the pleaded grounds of adultery, cruelty and irreconcilable differences.

Reasoning

The court considered the pleaded grounds and their contribution to the irretrievable breakdown contemplated in section 65 of the Act. It noted the length of physical separation, relied on JSM v ENB [2015], and observed the unequivocal position of both parties in the petition and answer that neither intended to salvage the union. Since a court cannot force two adults to live together where there is no more love between them, divorce was granted.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has clearly expressed the desire to dissolve the marriage; irretrievable breakdown under section 65 of the Marriage Act justifies divorce.

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
Jurisdiction invoked
The Marriage Act, 2014, section 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, "RMK v BNW (Divorce Cause E1163 of 2022) [2023] KEMC 206 (KLR)", Case Analysis (2023). Petition dated 29th September 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/206/eng@2023-07-11

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