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MagistrateAllowedDivorce Cause (petition dated 11th January 2023)· [2023] KEMC 223 (KLR)

EKM v RNM (Divorce Cause E021 of 2023) [2023] KEMC 223 (KLR)

Magistrates' Court (Family Division)
10 July 2023
JAJeal Praxades Atieno Aduke
551 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner, EKM, petitioned for divorce from the respondent, RNM, on the ground of irretrievable breakdown of their civil marriage, solemnized on 21st April 2017 at the Office of the Registrar of Marriages in Kenya. The couple have no children and both are domiciled in Kenya. The respondent was duly served with the petition and annexures, and later with an application to have the cause proceed undefended, but neither entered appearance nor filed a response. The matter therefore proceeded undefended. At the hearing the petitioner relied on his petition and verifying affidavit, averring the contents remained true, and prayed for dissolution of the marriage. The sole issue identified was whether the marriage merited divorce under section 66 of the Marriage Act, 2014, which lists grounds including irretrievable breakdown. Considering the particulars of the grounds, the length of physical separation, and the parties' unequivocal lack of intention to salvage the union, and applying the reasoning in JSM v ENB, ROK v MJB and TPH v NVS, the magistrate held that marriage is a voluntary union and the court cannot compel parties to remain married where the petitioner seeks dissolution. The petition dated 11th January 2023 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. Judgment was delivered on 10th July 2023.

Key legal issues

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01

Whether the marriage between EKM and RNM merited dissolution on the ground of irretrievable breakdown under section 66 of the Marriage Act, 2014

Holding

The petition was allowed; the court found the marriage had irretrievably broken down and could not compel the parties to remain married.

Reasoning

The petition proceeded undefended after due service. The petitioner relied on his petition and verifying affidavit, confirming the contents remained true at hearing. The court considered the particulars of the grounds, the length of physical separation, and the parties' lack of intention to salvage the union, relying on prior decisions including JSM v ENB, ROK v MJB and TPH v NVS. Since marriage is a voluntary union, the court held it could not force two adults to live together absent love, and granted the dissolution.

p. 2

Legal principles established

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  • A court cannot compel parties to remain married where the petitioner has stated an intention to dissolve the marriage; irretrievable breakdown is a ground for divorce under section 66 of the Marriage Act, 2014.

Court orders

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  1. 1.The marriage between the parties be and is hereby dissolved
  2. 2.Decree nisi to 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, 2014Section 66

Cases cited (3)

  • JSM vs ENB
    [2015]
  • ROK v MJB
    [2017] eKLR
  • TPH v NVS
    [2017] eKLR
Jurisdiction invoked
Section 66 of the Marriage Act, 2014 (dissolution of Civil 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, "EKM v RNM (Divorce Cause E021 of 2023) [2023] KEMC 223 (KLR)", Case Analysis (2023). Divorce Cause (petition dated 11th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/223/eng@2023-07-10

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