JWNN v LNN [2023] KEMC 58 (KLR)

JWNN v LNN (Divorce Cause E269 of 2022) [2023] KEMC 58 (KLR) (23 March 2023) (Judgment)

Neutral citation: [2023] KEMC 58 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Divorce Cause E269 of 2022

JP Aduke, SRM

March 23, 2023

Between

JWNN

Petitioner

and

LNN

Respondent

Judgment

1. The petitioner filed the petition dated 1st March 2022 seeking a divorce on the grounds of cruelty and irretrievable breakdown of the marriage. Return of service on record shows that the respondent was duly served with the petition and annexures thereto. The respondent neither entered appearance nor filed a response. The petitioner filed an application seeking to have the petition proceed undefended. Return of service on record shows the petitioner served the respondent with the said application. These proceedings proceeded undefended.

2. The brief facts of the case are as contained in paragraph 1-11 of the petition. In record JWNN and LNN solemnized their marriage on 10th January 1999 at the Church of Restoration-Thogoto in Kenya. They have three issues from the union. Both parties are domiciled in Kenya. The parties have no intentions of salvaging the marriage. The particulars for the grounds for divorce are outlined as follows:1. Cruelty;2. Irretrievable breakdown of the marriage.

3. At the hearing thereof, the petitioner relied on the petition and the pleadings on record as evidence in support of the petition for divorce. Notably the petition averred that the contents of the petition remained true as at the date of the hearing. The petitioner prayed that the petition be allowed as prayed.

4. The issue for determination before this court is whether or not the marriage between the parties merits an order of divorce under The Marriage Act2014.

5. The applicable law is section 65 of the Act(dissolution of Christian marriages) which provides that the court may grant the separation of divorce on the following grounds:1. Adultery by the other spouse2. Cruelty by the other spouse3. Exceptional depravity by the other spouse4. Desertion by the other spouse for at least 3 years5. The irretrievable breakdown of the marriage

6. I have considered the particulars of the grounds outlined in the petition and how those have contributed to the irretrievable breakdown of the marriage as contemplated under s.65 of the Act. I have also noted the length of physical separation of the couple herein and relied on the reasoning of the court in JSM vs ENB [2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of para 11 of the Petition on lack of such intention. The reasoning of the court in ROK v MJB and TPH v NVS 2017 eKLR cannot be emphasized enough-“marriage is a voluntary union……this court cannot by any means order or compel the parties to remain married when the petitioner has categorically stated that she wants the same dissolved…”

7. Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 1st March 2022 before me on the following terms:1. the marriage between the two be and is hereby dissolved.2. Decree nisi do issue to be made absolute in 30 days.3. This being a family matter, each party to bear own costs.

JUDGEMENT DATED AND SIGNED THIS 23RD MARCH 2023 AT 08. 26AM.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATE