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MagistrateAllowedNot stated in judgment (petition dated 15th August 2022)· [2024] KEMC 9 (KLR)
EWN v SCM (Divorce Cause E1007 of 2022) [2024] KEMC 9 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan magistrate dissolved an undefended marriage, confirming courts cannot force couples to stay married once one spouse wants out.
What this practically means
#Executive summary
#The petitioner EWN filed a petition dated 15th August 2022 seeking divorce from the respondent SCM on the grounds of desertion and irretrievable breakdown of the marriage, solemnized on 14th December 2018 in Kenya. The parties have no children and are domiciled in Kenya, though the respondent is resident in Australia. The respondent was served with the petition and annexures as shown by the return of service, but neither entered appearance nor filed a response. The petitioner then applied to have the cause proceed undefended, served that application, and the matter proceeded undefended. At the hearing the petitioner relied on her petition and verifying affidavit, affirming the contents remained true, and prayed for dissolution of the marriage. The court framed the sole issue as whether the marriage merited a divorce under Section 66 of the Marriage Act, 2014, which permits divorce on grounds including desertion for at least three years and irretrievable breakdown. Considering the particulars of the grounds, the length of physical separation, the parties' lack of intention to salvage the union, and prior authorities including JSM vs ENB [2015] and ROK v MJB and TPH v NVS (2017 eKLR), the magistrate held a court cannot compel parties to remain married against the petitioner's stated wish. The petition was allowed, the marriage 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
#01
Whether the marriage had irretrievably broken down and the respondent had deserted the petitioner so as to justify divorce under s.66 of the Marriage Act
Holding
The petition was allowed and the marriage dissolved on the grounds of desertion and irretrievable breakdown
Reasoning
The court considered the particulars of the grounds in the petition, the length of physical separation of the couple, and the absence of any intention to salvage the union as averred in the petition. Relying on reasoning in prior decisions, it held it cannot force two adults to live together where there is no more love between them, and granted the dissolution sought undefended.
p. 2
Legal principles established
#- A court cannot compel parties to remain married where the petitioner has stated the marriage should be dissolved
Court orders
#- 1.The marriage between the petitioner and the respondent is dissolved
- 2.Decree nisi to issue forthwith to be made absolute in 30 days
- 3.Each party to bear own costs
- Jurisdiction invoked
- Section 66 of the Marriage Act, 2014 (dissolution of Civil Marriages)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EWN v SCM (Divorce Cause E1007 of 2022) [2024] KEMC 9 (KLR)", Case Analysis (2023). Not stated in judgment (petition dated 15th August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/9/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.