LAT v VOO [2023] KEMC 198 (KLR)

LAT v VOO (Divorce Cause E005 of 2023) [2023] KEMC 198 (KLR) (25 July 2023) (Judgment)

Neutral citation: [2023] KEMC 198 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Divorce Cause E005 of 2023

JP Aduke, SRM

July 25, 2023

Between

LAT

Petitioner

and

VOO

Respondent

Judgment

1. The Petitioner filed the petition dated 16th December 2022 seeking a divorce on the grounds of irretrievable breakdown of the marriage and desertion. Return of service shows that the Respondent was served with the petition and annexures thereto. The Respondent entered appearance and filed a response. The Petitioner filed an application seeking to have a divorce cause proceed defended. Return of service on record shows that the petitioner served the respondent with the said application. These proceedings proceed defended.

2. The brief facts of the case are as contained in the petition and answer to petition on record. In summary, L.A.T and V.O.O solemnized their marriage on 22nd May 2009 in Kenya at the Office of the Registrar of Marriages. They have two issues together from the union. Both of them are domiciled in Kenya. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:1. Irretrievable breakdown of the marriage;2. Desertion;

3. At the hearing thereof, the petitioner relied on her petition and witness statement on record as her evidence in chief. Notably, the petitioner averred that the contents of the petition remained true as date of the hearing. She prayed for an order of dissolution of the marriage. The respondent equally testified and prayed for an order of divorce.

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 Act, 2014 (hereafter, the Act)

5. The applicable law is S. 66 (dissolution of Civil Marriages) of the Act which provides that the court may grant separation or divorce on the following grounds:1. Adultery by the other spouse;2. Cruelty by the other spouse;3. Exceptional depravity by the other spouse;4. Desertion by the other spouse for at least 3 years;5. 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.66 of the Act. I have also noted the length of physical separation of the couple herein, the levels of antagonism between the parties 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 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…” Seeing as this court cannot force two adults to live together when there is no more love between them, I allow the petition dated 16th December 2022 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 its own costs.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT DATED AND SIGNED THIS 25TH JULY 2023In the presence of1. Court Assistant Benjamin Kombe2. Counsel of the Petitioner3. Counsel of the Respondent.