A Nakuru magistrate has dismissed a divorce petition filed by a United States-based Kenyan, ruling that no valid marriage existed to dissolve.
Senior principal magistrate Aloyce Ndege threw out the case brought by BMT against MWM, directing that the parties continue as unmarried because their four-year cohabitation did not constitute a legally recognised union under Kenyan law.
BMT filed the divorce case in May last year seeking the dissolution of his union on the ground of cruelty.
He alleged that the couple started cohabiting as husband and wife for four years before their relationship irretrievably broke down, culminating in a separation in 2024.
“During the subsistence of the marriage and at all material times the respondent (MWM) conducted herself totally against the morals and dictates of a wife as required of her by tradition, conscience, religion and the marriage law,”BMT said in his testimony.
“She did not share household expenses at any point with him during the subsistence of the marriage and as a result he had to bear the financial burden all by himself.”
BMT told the court that he had since relocated to the United States in search of greener pastures, while maintaining his home residence in Nakuru.
“He is aware that the respondent has since moved on and is in another romantic relationship,” the court heard.
BMT formally asked the court "for a presumption of the marriage and a divorce".
While MWM was served with the petition, she neither entered an appearance nor submitted a formal answer.
Consequently, the matter proceeded as an undefended
cause, with only the BMT giving oral testimony during the hearing.
Addressing the legal status of the relationship, magistrate Ndege declined to presume a marriage existed to dissolve it.
“Presumption are meant to achieve a specific purpose such as in matrimonial or succession causes. Presumption will serve no purpose if its aim is to dissolve a marriage. What is the essence of presuming a marriage and at the same time dissolving it?” the magistrate said.
“I find a period of four years not that long and given the evidence adduced by the petitioner herein, I find no quality in the short period that the parties herein cohabited to make me presume a marriage, even though such a presumption shall still serve no purpose herein."
The court found that legally, no marriage existed.
“The upshot is that the petition herein is hereby dismissed as unnecessary and the parties to continue as unmarried, for there was no marriage recognised by our law, that is, Christian, Muslim, Hindu, customary or civil, that existed between the parties herein. In Kenya, it is only those kinds of marriages that can legally be dissolved.”
The petition was thus dismissed, with the court ordering BMT to bear the costs of the proceedings.
