(Being an Appeal from the Judgment and Order of the Honourable Senior Principal Magistrate Lesootia Saitabau delivered on 11 th June, 2024, in Nairobi Chief Magistrate’s Court Divorce Cause No. E676 of 2023)
1. This appeal arises from the Judgment of Hon. Lesootia Saitabau (SPM) delivered on 11 ᵗʰ June, 2024 in Nairobi Chief Magistrate’s Court Divorce Cause No. E676 of 2023.
2. By a Petition dated 29 ᵗʰ May, 2023, the Petitioner sought dissolution of the marriage on grounds of cruelty, irreconcilable differences and irretrievable breakdown of the marriage. She testified that marital difficulties arose in 2017 and that in 2021 the Respondent left the matrimonial home and thereafter commenced cohabitation with another woman with whom he had a child. It was her evidence that efforts at reconciliation had failed and that the marriage could no longer be salvaged.
3. The Respondent opposed the Petition through an Answer to Petition and Cross-Petition dated 10 ᵗʰ July, 2023. He denied the allegations of cruelty, adultery and desertion and maintained that he had always been a loving and caring husband. His case was that it was the Petitioner who abandoned the matrimonial home in 2021, removed her belongings and declined to return. He consequently sought dissolution of the marriage through a Cross-Petition founded on desertion.
4. Upon hearing the parties, the learned trial magistrate found that the Petitioner had failed to establish cruelty, adultery, desertion or irretrievable breakdown of the marriage and consequently dismissed the Petition.
5. Aggrieved by that decision, the Appellant lodged the present appeal through a Memorandum of Appeal dated 24 ᵗʰ June, 2025 raising the following grounds:
a) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the parties had during the subsistence of the marriage developed irreconcilable differences since 2017 and have since failed to agree on various issues;
b) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the Respondent had during the subsidence of the marriage engaged in multiple extramarital affairs, one of which resulted in him siring a child outside the marriage;
c) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the Respondent had during the subsidence of the marriage deserted the matrimonial home and has since 2021 been living with the woman he engaged in extramarital affairs with and even sired a child;
d) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the Respondent caused and forced the Appellant to desert the matrimonial home since 2017, on and off, and further that the Appellant was forced to solely provide and care for the children.
6. The appeal was canvassed by way of written submissions.
Submissions
In written submissions dated 10 ᵗʰ February, 2026, the Appellant submits that the learned trial magistrate erred in law and fact by dismissing the Petition despite the evidence demonstrating that the marriage had irretrievably broken down. She submits that the evidence before the trial Court established a prolonged separation, a complete breakdown of the consortium, loss of affection, mistrust, and the absence of any realistic possibility of reconciliation.
7. According to the Appellant, the parties had ceased functioning as husband and wife, and the learned trial magistrate failed to appreciate the practical reality of the relationship.
8. The Appellant further submits that she pleaded and testified that the Respondent deserted the matrimonial home in 2021 and had never returned to resume marital cohabitation. She argues that the separation was deliberate, prolonged and without reasonable cause. It is further submitted that following his departure, the Respondent commenced cohabitation with another woman and established a separate domestic arrangement. According to the Appellant, the Respondent’s conduct demonstrated a settled intention permanently to abandon the marriage and amounted to clear evidence of desertion.
9. On adultery, the Appellant submits that the learned trial magistrate failed to properly evaluate the evidence and draw the correct inferences arising therefrom. Counsel argues that the Respondent was cohabiting with another woman and that a child had been born from that relationship during the subsistence of the marriage. It is submitted that adultery may be proved by circumstantial evidence and that the facts presented before the trial court were sufficient to establish adultery on a balance of probabilities.
10. The Appellant further submits that the learned trial magistrate failed to properly evaluate the totality of the evidence and instead selectively considered aspects of the Respondent’s case while disregarding the Appellant’s evidence. It is argued that had the evidence been properly analysed, the trial Court would have found that the marriage had irretrievably broken down and ought to have been dissolved.
11. They relied on GOA v RAA (Divorce Appeal E053 of 2023) and VK v NGM (Divorce Appeal No. 61 of 2019).
12. In written submissions dated 10 ᵗʰ February, 2026, the Respondent supports the judgment of the trial court and submits that the Appellant failed to establish any of the statutory grounds for dissolution of the marriage. Counsel argues that the burden of proof rested upon the Appellant and that the allegations of cruelty, adultery and desertion remained unproven.
13. The Respondent submits that the allegations of cruelty and neglect were unsupported by evidence. He argued that no witness was called to corroborate the alleged conduct, no medical evidence was produced and no documentary material was tendered to demonstrate physical, emotional or financial abuse. The Respondent contends that the allegations amounted to bare assertions incapable of meeting the legal threshold required in matrimonial causes.
14. On adultery, the Respondent submits that the allegations were not supported by sufficient evidence and remained matters of suspicion. He argues that no evidence was produced to establish the alleged intimate relationship or to prove that the Respondent had fathered a child outside the marriage. It is further submitted that particulars of adultery were not specifically pleaded and that the allegations could not therefore form a proper basis for dissolution of the marriage.
15. With regard to desertion, the Respondent submits that the Appellant failed to prove wilful separation by the Respondent. Counsel argues that the evidence did not establish the statutory ingredients of desertion and maintains that it was in fact the Appellant who left the matrimonial home. He further submitted that the Appellant failed to identify specific acts constituting desertion and that the evidence did not demonstrate an intention on the part of the Respondent permanently to abandon the marriage.
16. The Respondent submits that the learned trial magistrate properly evaluated the evidence, correctly applied the law and rightly concluded that the Appellant had failed to prove cruelty, adultery, desertion or irretrievable breakdown of the marriage. He urged the Court to dismiss the appeal and uphold the judgment of the trial Court.
17. They relied on Mulhouse v Mulhouse [1964] 2 All ER 50, Kamweru v Kamweru (2000), MN v CMN , Civil Appeal No. 89 of 2019 and Mbuthia v Jimba Credit Corporation Ltd [1988] eKLR.
Analysis & Determination:
18. Having considered the entirety of the record and submissions of the parties, the sole issue for determination is whether the Appellant proved the grounds for dissolution of the marriage.
19. As this is a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence that was placed before the trial Court and arrive at its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR , the Court of Appeal stated:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
20. The learned trial magistrate dismissed the Petition after finding that the Appellant had failed to prove adultery, desertion and irretrievable breakdown of the marriage. In particular, the Court held:
“The petitioner has failed to prove adultery.”
“The petitioner has failed to prove desertion.”
21. The court ultimately concluded that:
“There is no evidence that the marriage between the petitioner and respondent has irretrievably broken down.”
22. In the Petition dated 29 ᵗʰ May, 2023, the Appellant sought dissolution of the marriage on grounds including irretrievable breakdown. The Respondent did not merely oppose the Petition. In his Answer to Petition and Cross-Petition dated 10 ᵗʰ July, 2023, he pleaded:
“As a result of the foregoing, the marriage between the Petitioner and the Respondent has irretrievably broken down.”
23. He further pleaded:
“That the Respondent is not to blame for the breakdown of the marriage.”
24. Most significantly, the Respondent prayed:
“That the marriage between the Petitioner and the Respondent be dissolved.”
25. Thus, by the time the matter proceeded for hearing, both parties were before the Court seeking dissolution of the marriage. Their disagreement was not whether the marriage should continue. Their disagreement was over who bore responsibility for its collapse.
26. The evidence before the trial Court equally demonstrated that the parties had not lived together for a considerable period. The Appellant testified that the Respondent deserted the matrimonial home in 2021 and never returned. The Respondent maintained that it was the Appellant who left the matrimonial home. Whichever version one adopts, one fact remained common and undisputed: the parties were no longer living together and had not done so for several years.
27. The evidence further disclosed that efforts at reconciliation had failed. The Appellant testified that there was no possibility of resumption of marital life. The Respondent, despite denying responsibility for the breakdown, did not seek preservation of the marriage. Instead, he filed a Cross-Petition seeking its dissolution.
28. The learned trial magistrate correctly observed that the burden rested upon the Appellant to prove the matrimonial offences alleged. In Alexander Kamweru v Anne Wanjiru Kamweru (2000) eKLR , the Court of Appeal stated:
“Certainly, cruelty or desertion may be proved by a preponderance of probability, that is to say that the court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the case may be) established.”
29. The same position was reiterated in SCC v MK [2012] eKLR where the Court stated:
“Applying the yardstick of the burden and standard of proof as set out above we would say that the feelings of some certainty by court, that is being satisfied as to be sure; means being satisfied on preponderance of probability. Certainly cruelty or desertion may be proved by a preponderance of probability, that is to say that the court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the case may be) established.”
30. I agree that allegations of adultery and desertion must be proved. However, the appeal before this Court does not end with the question whether the learned magistrate was entitled to find those particular matrimonial offences unproven. The fundamental question is whether the learned magistrate was entitled, in light of the entire record, to conclude that there was “no evidence” of irretrievable breakdown.
31. On the issue of adultery, the Appellant's evidence was that the Respondent had commenced cohabitation with another woman and had a child from that relationship. In CWN v AN [2019] KEHC 867 (KLR), the Court stated:
“ The appellant also testified that the respondent was in cohabitation with another woman and they were blessed with two children whom the appellant knew by name and profession having met her at their rental houses and had a conversation with her . The respondent is said to have told the appellant’s mother that he had another wife which allegation he did not deny. This unlawful union in my considered view is proof of adultery on the balance of probability.”
32. The Court in that matter illustrated that adultery may be inferred from surrounding circumstances and need not invariably be proved by direct evidence. Whether or not the evidence in the present matter was sufficient to establish adultery as a standalone matrimonial offence, it nonetheless formed part of the factual matrix from which the state of the marriage between the parties fell to be assessed.
33. The evidence before the trial Court disclosed prolonged separation, mutual accusations, failed reconciliation efforts and a Cross-Petition in which the Respondent himself pleaded that the marriage had irretrievably broken down and sought its dissolution. In my view, those matters could not be ignored when determining whether the marriage remained viable.
34. In MNM v SJC , Divorce Cause No. 1 of 2013 , the Court observed:
“It has all along been apparent that the marriage between the two has irretrievably broken down such that any attempt to give them time to resolve their marital problems by sustaining it would cause both of them untold anxiety and/or psychological torture. It is in their own interest and the interest of justice that the marriage be dissolved and they be allowed to move on with their respective lives….”
35. Similarly, in P.C.W v J.B.N [2014] eKLR , the Court stated:
“The Constitution enshrines the family unit (Article 45), as fundamental unit of society which should be supported but to keep adults together in conduct described by each party against the other as humiliating is to add more misery on the existing psychological trauma shown with succession departures by the Respondent from the family. To force parties that clearly demonstrate unwillingness to reconcile and have been separated for a considerable while now would be a recipe for disaster.”
36. In D.N.M v J.N.M [2016] eKLR , the Court held:
“Whereas the Court ought to preserve and support the family unit under Article 45 of Constitution 2010; the Court cannot force parties to live together if they have manifested their choice to part ways. Therefore, the marriage between the Petitioner and Respondent is dissolved.”
37. Likewise, in HSM v HKR [2012] eKLR, the Court stated:
“It is apparently clear that there is no love between the two herein. This court shall uphold the rule of law and more particularly the constitution which grants every person the liberty of freedom and choice. The law cannot force parties to live together especially in such a situation.”
38. And in EMN v NWM [2010] eKLR , the Court observed:
“My principle has always been that if the couple does not wish to stay together, then the court should let them be. I cannot force them to remain joined only by a marriage certificate which has ceased to have meaning to them.”
39. I agree with the stated views. Upon my own evaluation of the record, I find that the evidence establishes prolonged separation, a complete breakdown of cohabitation, failed reconciliation efforts, and a mutual desire by both parties to bring the marriage to an end. Indeed, the Respondent expressly pleaded that the marriage had irretrievably broken down and sought an order dissolving it. In those circumstances, I am unable to agree with the finding that there was “no evidence” of irretrievable breakdown.
40. I therefore find that the marriage between the parties had irretrievably broken down and that the learned trial magistrate erred in dismissing the Petition.
Disposition:
41. In the result, I find merit in the appeal and make the following orders:
a) The appeal is hereby allowed;
b) The Judgment of Hon. Lesootia Saitabau (SPM) delivered on 11 ᵗʰ June, 2024 in Nairobi Chief Magistrate’s Court Divorce Cause No. E676 of 2023 is hereby set aside;
c) In substitution therefor, an order is hereby issued dissolving the marriage celebrated between the Appellant and the Respondent on 5 ᵗʰ October, 2016 under the Marriage Act;
d) A Decree Nisi shall issue forthwith and shall become absolute after the expiry of thirty (30) days from the date hereof;
e) Given the nature of the dispute and the relationship between the parties, each party shall bear own costs of the appeal and of the proceedings before the trial court.
42. Orders accordingly.
DATED, SIGNED & DELIVERED ON THIS 3 RD DAY OF JUNE, 2026
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Adv. Kwaro, Advocate for the Appellant
No appearance for the Respondent
2 | Page Family Appeal No. E097 OF 2025 JUDGMENT
1. This appeal arises from the Judgment of Hon. Lesootia Saitabau (SPM) delivered on 11 ᵗʰ June, 2024 in Nairobi Chief Magistrate’s Court Divorce Cause No. E676 of 2023.
2. By a Petition dated 29 ᵗʰ May, 2023, the Petitioner sought dissolution of the marriage on grounds of cruelty, irreconcilable differences and irretrievable breakdown of the marriage. She testified that marital difficulties arose in 2017 and that in 2021 the Respondent left the matrimonial home and thereafter commenced cohabitation with another woman with whom he had a child. It was her evidence that efforts at reconciliation had failed and that the marriage could no longer be salvaged.
3. The Respondent opposed the Petition through an Answer to Petition and Cross-Petition dated 10 ᵗʰ July, 2023. He denied the allegations of cruelty, adultery and desertion and maintained that he had always been a loving and caring husband. His case was that it was the Petitioner who abandoned the matrimonial home in 2021, removed her belongings and declined to return. He consequently sought dissolution of the marriage through a Cross-Petition founded on desertion.
4. Upon hearing the parties, the learned trial magistrate found that the Petitioner had failed to establish cruelty, adultery, desertion or irretrievable breakdown of the marriage and consequently dismissed the Petition.
5. Aggrieved by that decision, the Appellant lodged the present appeal through a Memorandum of Appeal dated 24 ᵗʰ June, 2025 raising the following grounds:
a) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the parties had during the subsistence of the marriage developed irreconcilable differences since 2017 and have since failed to agree on various issues;
b) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the Respondent had during the subsidence of the marriage engaged in multiple extramarital affairs, one of which resulted in him siring a child outside the marriage;
c) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the Respondent had during the subsidence of the marriage deserted the matrimonial home and has since 2021 been living with the woman he engaged in extramarital affairs with and even sired a child;
d) THAT the learned magistrate erred in fact and in law by failing to take into account and consider that the Respondent caused and forced the Appellant to desert the matrimonial home since 2017, on and off, and further that the Appellant was forced to solely provide and care for the children.
6. The appeal was canvassed by way of written submissions.
Submissions
In written submissions dated 10 ᵗʰ February, 2026, the Appellant submits that the learned trial magistrate erred in law and fact by dismissing the Petition despite the evidence demonstrating that the marriage had irretrievably broken down. She submits that the evidence before the trial Court established a prolonged separation, a complete breakdown of the consortium, loss of affection, mistrust, and the absence of any realistic possibility of reconciliation.
7. According to the Appellant, the parties had ceased functioning as husband and wife, and the learned trial magistrate failed to appreciate the practical reality of the relationship.
8. The Appellant further submits that she pleaded and testified that the Respondent deserted the matrimonial home in 2021 and had never returned to resume marital cohabitation. She argues that the separation was deliberate, prolonged and without reasonable cause. It is further submitted that following his departure, the Respondent commenced cohabitation with another woman and established a separate domestic arrangement. According to the Appellant, the Respondent’s conduct demonstrated a settled intention permanently to abandon the marriage and amounted to clear evidence of desertion.
9. On adultery, the Appellant submits that the learned trial magistrate failed to properly evaluate the evidence and draw the correct inferences arising therefrom. Counsel argues that the Respondent was cohabiting with another woman and that a child had been born from that relationship during the subsistence of the marriage. It is submitted that adultery may be proved by circumstantial evidence and that the facts presented before the trial court were sufficient to establish adultery on a balance of probabilities.
10. The Appellant further submits that the learned trial magistrate failed to properly evaluate the totality of the evidence and instead selectively considered aspects of the Respondent’s case while disregarding the Appellant’s evidence. It is argued that had the evidence been properly analysed, the trial Court would have found that the marriage had irretrievably broken down and ought to have been dissolved.
11. They relied on GOA v RAA (Divorce Appeal E053 of 2023) and VK v NGM (Divorce Appeal No. 61 of 2019).
12. In written submissions dated 10 ᵗʰ February, 2026, the Respondent supports the judgment of the trial court and submits that the Appellant failed to establish any of the statutory grounds for dissolution of the marriage. Counsel argues that the burden of proof rested upon the Appellant and that the allegations of cruelty, adultery and desertion remained unproven.
13. The Respondent submits that the allegations of cruelty and neglect were unsupported by evidence. He argued that no witness was called to corroborate the alleged conduct, no medical evidence was produced and no documentary material was tendered to demonstrate physical, emotional or financial abuse. The Respondent contends that the allegations amounted to bare assertions incapable of meeting the legal threshold required in matrimonial causes.
14. On adultery, the Respondent submits that the allegations were not supported by sufficient evidence and remained matters of suspicion. He argues that no evidence was produced to establish the alleged intimate relationship or to prove that the Respondent had fathered a child outside the marriage. It is further submitted that particulars of adultery were not specifically pleaded and that the allegations could not therefore form a proper basis for dissolution of the marriage.
15. With regard to desertion, the Respondent submits that the Appellant failed to prove wilful separation by the Respondent. Counsel argues that the evidence did not establish the statutory ingredients of desertion and maintains that it was in fact the Appellant who left the matrimonial home. He further submitted that the Appellant failed to identify specific acts constituting desertion and that the evidence did not demonstrate an intention on the part of the Respondent permanently to abandon the marriage.
16. The Respondent submits that the learned trial magistrate properly evaluated the evidence, correctly applied the law and rightly concluded that the Appellant had failed to prove cruelty, adultery, desertion or irretrievable breakdown of the marriage. He urged the Court to dismiss the appeal and uphold the judgment of the trial Court.
17. They relied on Mulhouse v Mulhouse [1964] 2 All ER 50, Kamweru v Kamweru (2000), MN v CMN , Civil Appeal No. 89 of 2019 and Mbuthia v Jimba Credit Corporation Ltd [1988] eKLR.
Analysis & Determination:
18. Having considered the entirety of the record and submissions of the parties, the sole issue for determination is whether the Appellant proved the grounds for dissolution of the marriage.
19. As this is a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence that was placed before the trial Court and arrive at its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR , the Court of Appeal stated:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
20. The learned trial magistrate dismissed the Petition after finding that the Appellant had failed to prove adultery, desertion and irretrievable breakdown of the marriage. In particular, the Court held:
“The petitioner has failed to prove adultery.”
“The petitioner has failed to prove desertion.”
21. The court ultimately concluded that:
“There is no evidence that the marriage between the petitioner and respondent has irretrievably broken down.”
22. In the Petition dated 29 ᵗʰ May, 2023, the Appellant sought dissolution of the marriage on grounds including irretrievable breakdown. The Respondent did not merely oppose the Petition. In his Answer to Petition and Cross-Petition dated 10 ᵗʰ July, 2023, he pleaded:
“As a result of the foregoing, the marriage between the Petitioner and the Respondent has irretrievably broken down.”
23. He further pleaded:
“That the Respondent is not to blame for the breakdown of the marriage.”
24. Most significantly, the Respondent prayed:
“That the marriage between the Petitioner and the Respondent be dissolved.”
25. Thus, by the time the matter proceeded for hearing, both parties were before the Court seeking dissolution of the marriage. Their disagreement was not whether the marriage should continue. Their disagreement was over who bore responsibility for its collapse.
26. The evidence before the trial Court equally demonstrated that the parties had not lived together for a considerable period. The Appellant testified that the Respondent deserted the matrimonial home in 2021 and never returned. The Respondent maintained that it was the Appellant who left the matrimonial home. Whichever version one adopts, one fact remained common and undisputed: the parties were no longer living together and had not done so for several years.
27. The evidence further disclosed that efforts at reconciliation had failed. The Appellant testified that there was no possibility of resumption of marital life. The Respondent, despite denying responsibility for the breakdown, did not seek preservation of the marriage. Instead, he filed a Cross-Petition seeking its dissolution.
28. The learned trial magistrate correctly observed that the burden rested upon the Appellant to prove the matrimonial offences alleged. In Alexander Kamweru v Anne Wanjiru Kamweru (2000) eKLR , the Court of Appeal stated:
“Certainly, cruelty or desertion may be proved by a preponderance of probability, that is to say that the court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the case may be) established.”
29. The same position was reiterated in SCC v MK [2012] eKLR where the Court stated:
“Applying the yardstick of the burden and standard of proof as set out above we would say that the feelings of some certainty by court, that is being satisfied as to be sure; means being satisfied on preponderance of probability. Certainly cruelty or desertion may be proved by a preponderance of probability, that is to say that the court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the case may be) established.”
30. I agree that allegations of adultery and desertion must be proved. However, the appeal before this Court does not end with the question whether the learned magistrate was entitled to find those particular matrimonial offences unproven. The fundamental question is whether the learned magistrate was entitled, in light of the entire record, to conclude that there was “no evidence” of irretrievable breakdown.
31. On the issue of adultery, the Appellant's evidence was that the Respondent had commenced cohabitation with another woman and had a child from that relationship. In CWN v AN [2019] KEHC 867 (KLR), the Court stated:
“ The appellant also testified that the respondent was in cohabitation with another woman and they were blessed with two children whom the appellant knew by name and profession having met her at their rental houses and had a conversation with her . The respondent is said to have told the appellant’s mother that he had another wife which allegation he did not deny. This unlawful union in my considered view is proof of adultery on the balance of probability.”
32. The Court in that matter illustrated that adultery may be inferred from surrounding circumstances and need not invariably be proved by direct evidence. Whether or not the evidence in the present matter was sufficient to establish adultery as a standalone matrimonial offence, it nonetheless formed part of the factual matrix from which the state of the marriage between the parties fell to be assessed.
33. The evidence before the trial Court disclosed prolonged separation, mutual accusations, failed reconciliation efforts and a Cross-Petition in which the Respondent himself pleaded that the marriage had irretrievably broken down and sought its dissolution. In my view, those matters could not be ignored when determining whether the marriage remained viable.
34. In MNM v SJC , Divorce Cause No. 1 of 2013 , the Court observed:
“It has all along been apparent that the marriage between the two has irretrievably broken down such that any attempt to give them time to resolve their marital problems by sustaining it would cause both of them untold anxiety and/or psychological torture. It is in their own interest and the interest of justice that the marriage be dissolved and they be allowed to move on with their respective lives….”
35. Similarly, in P.C.W v J.B.N [2014] eKLR , the Court stated:
“The Constitution enshrines the family unit (Article 45), as fundamental unit of society which should be supported but to keep adults together in conduct described by each party against the other as humiliating is to add more misery on the existing psychological trauma shown with succession departures by the Respondent from the family. To force parties that clearly demonstrate unwillingness to reconcile and have been separated for a considerable while now would be a recipe for disaster.”
36. In D.N.M v J.N.M [2016] eKLR , the Court held:
“Whereas the Court ought to preserve and support the family unit under Article 45 of Constitution 2010; the Court cannot force parties to live together if they have manifested their choice to part ways. Therefore, the marriage between the Petitioner and Respondent is dissolved.”
37. Likewise, in HSM v HKR [2012] eKLR, the Court stated:
“It is apparently clear that there is no love between the two herein. This court shall uphold the rule of law and more particularly the constitution which grants every person the liberty of freedom and choice. The law cannot force parties to live together especially in such a situation.”
38. And in EMN v NWM [2010] eKLR , the Court observed:
“My principle has always been that if the couple does not wish to stay together, then the court should let them be. I cannot force them to remain joined only by a marriage certificate which has ceased to have meaning to them.”
39. I agree with the stated views. Upon my own evaluation of the record, I find that the evidence establishes prolonged separation, a complete breakdown of cohabitation, failed reconciliation efforts, and a mutual desire by both parties to bring the marriage to an end. Indeed, the Respondent expressly pleaded that the marriage had irretrievably broken down and sought an order dissolving it. In those circumstances, I am unable to agree with the finding that there was “no evidence” of irretrievable breakdown.
40. I therefore find that the marriage between the parties had irretrievably broken down and that the learned trial magistrate erred in dismissing the Petition.
Disposition:
41. In the result, I find merit in the appeal and make the following orders:
a) The appeal is hereby allowed;
b) The Judgment of Hon. Lesootia Saitabau (SPM) delivered on 11 ᵗʰ June, 2024 in Nairobi Chief Magistrate’s Court Divorce Cause No. E676 of 2023 is hereby set aside;
c) In substitution therefor, an order is hereby issued dissolving the marriage celebrated between the Appellant and the Respondent on 5 ᵗʰ October, 2016 under the Marriage Act;
d) A Decree Nisi shall issue forthwith and shall become absolute after the expiry of thirty (30) days from the date hereof;
e) Given the nature of the dispute and the relationship between the parties, each party shall bear own costs of the appeal and of the proceedings before the trial court.
42. Orders accordingly.
DATED, SIGNED & DELIVERED ON THIS 3 RD DAY OF JUNE, 2026
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Adv. Kwaro, Advocate for the Appellant
No appearance for the Respondent
2 | Page Family Appeal No. E097 OF 2025 JUDGMENT