SWK v SOO (Divorce Cause 82 of 2020) [2024] KEMC 15 (KLR) (27 June 2024) (Judgment)

SWK v SOO (Divorce Cause 82 of 2020) [2024] KEMC 15 (KLR) (27 June 2024) (Judgment) Neutral citation: [2024] KEMC 15 (KLR) Republic of Kenya In the Milimani Commercial Chief Magistrate's Courts Divorce Cause 82 of 2020 JP Aduke, SRM June 27, 2024 Between SWK Petitioner and SOO Respondent Judgment 1.The Petitioner filed the petition dated 28th January 2020 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 entered appearance and filed an answer to the petition. These proceedings proceeded defended. 2.The brief facts of the case are as contained in the petition and answer to petition on record. In summary, SWK and SOO solemnized their marriage in Kenya on 20th August 2010 at the Office of the Attorney General. Both the petitioner and the respondent are domiciled in Kenya. They have two issues together. The parties have no intentions of salvaging this marriage. The particulars of the grounds for divorce are outlined in the petition as follows:1.Irreconcilable differences /Irretrievable breakdown of the marriage;2.Desertion;3.Cruelty; 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. The respondent equally testified and prayed for an order of divorce on account of irretrievable breakdown of the marriage. 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](/akn/ke/act/2014/4), 2014 (hereafter, the [Act](/akn/ke/act/2014/4)). 5.The applicable law is s.66 of the Act (dissolution of Civil 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 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 v ENB](https://kenyalaw.org/caselaw/cases/view/111186#:~:text=The%20appellant%2C%20J.%20S.%20M.%2C%20was%20the,irretrievable%20breakdown%20of%20the%20marriage.)[2015]. With respect to intention to salvage the union, I have noted the unequivocal terms of the Petition and cross-petition on lack of such intention. The reasoning of the court in [ROK v MJB](https://kenyalaw.org/caselaw/cases/view/138316) and [TPH v NVS](https://kenyalaw.org/caselaw/cases/view/135379) 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 28th January 2020 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 their own costs. **ADUKE JEAL PRAXADES ATIENO****SENIOR RESIDENT MAGISTRATE****JUDGEMENT SIGNED AT NAIROBI THIS 27 TH JUNE 2023 IN THE PRESENCE/ABSENCE OF THE PARTIES AT 11.30AM.**In the presence of :1\. Court Assistant: Benjamin Kombe2\. Counsel for the Petitioner-3\. Counsel for the Respondent: