NOK v JW [2023] KEMC 239 (KLR)

NOK v JW (Divorce Cause E1281 of 2022) [2023] KEMC 239 (KLR) (15 June 2023) (Judgment)

Neutral citation: [2023] KEMC 239 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Divorce Cause E1281 of 2022

JP Aduke, SRM

June 15, 2023

Between

NOK

Petitioner

and

JW

Respondent

Judgment

1. The Petitioner filed the petition dated 17th October 2022 seeking a divorce on the grounds of cruelty, desertion and irretrievable breakdown of the marriage. Return of service on record shows that the respondent was served with the petition and annexures thereto. The respondent never entered appearance. As a result of this, the petitioner filed an application seeking to have the matter proceed as an undefended suit. The court allowed the aforementioned application. These proceedings proceeded undefended.

2. The brief fact of the case are as contained in para 1-15 of the petition. In summary, NOK and JW solemnized their marriage in Kenya on 5th December 2011 at the Office of the Attorney General. Both the respondent and the petitioner are domiciled in Kenya. The petition is silent on whether or not they have any issues. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:1. Cruelty;2. Desertion;3. Irreconcilable differences /Irretrievable breakdown of the marriage;

3. At the hearing thereof, the petitioner relied on the petition and pleadings on record as evidence in support of the petition for divorce. Notably, the petitioner 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 merit an order of divorce under The Marriage Act, 2014 (hereafter, the Act).

5. The applicable law is s.69 of the Act (dissolution of Customary Marriages) 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;4. desertion;5. the irretrievable breakdown of the marriage;6. any valid ground under the Customary Law of the Petitioner;2. The cabinet secretary may make regulations for the implementation of this section.

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.69 of the Act. I have also noted the length of physical separation of the couple herein (over 8 years to date) 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 and 12 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 17th October 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. Regarding prayer 2 on the face of the petition, I note that the respondent and the petitioner have not had any contact or communication for over 8 years. From the documents available on record, it is apparent that the petitioner resides in United States of America while the respondent resides in Nairobi. I have not seen any documentary proof of any attempted molestation, harassment, intimidation, threats, provocation, annoyance, incitement ejusdem generis on the file as at the date of writing this judgment. I am reluctant to grant these orders in view of the above observations, and hereby decline prayer 2 on the face of the Petition.4. This being a family matter, each party to bear their own costs.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AT NAIROBI THIS 15TH JUNE 2023 IN PRESENCE/ABSENCE OF PARTIES AT 11. 05AM.In the presence of :1. Court Assistant: Benjamin Kombe