High Court: Marriages Beyond Repair Must Be Dissolved

The High Court has ruled that a marriage which has irretrievably broken down should be dissolved, stating that individuals cannot be required to remain in unions that no longer function.

The case arose from an appeal by Mr S.K.K, who sought to end his 21-year marriage to Ms E.W.K after a magistrate’s court in Machakos dismissed his divorce application in 2023. The lower court had instead granted a judicial separation, finding that reconciliation was still possible. 

Mr S.K.K challenged that decision, arguing that the marriage had effectively ended and that he was entitled to a formal divorce. In its decision, the High Court found that the couple had lived apart since July 2020 and had not shared marital relations for five years. 

The judge held that the lack of cohabitation and companionship demonstrated that the marriage had irretrievably broken down. The court noted that judicial separation is intended as a temporary arrangement to allow for possible reconciliation and should not be imposed where there is no realistic prospect of restoring the relationship. 

The court further found that the core elements of marriage, including companionship, intimacy and a shared life, were no longer present. Maintaining the legal bond, it said, would only prolong hardship, particularly for the party seeking closure. The judge stated that marriage is a voluntary union and cannot be sustained by law once its foundation has collapsed.

Ms E.W.K opposed the divorce on religious grounds, citing her Catholic faith, which does not recognise the dissolution of marriage. She also accused her husband of cruelty and abandonment, including the withdrawal of conjugal relations and alleged physical abuse. 

However, the court noted her acknowledgement that they had lived separately for several years, supporting the conclusion that the marriage could not be repaired.

The High Court set aside the magistrate’s ruling and granted the divorce. 

It clarified that judicial separation should not replace divorce in cases where a marriage has irretrievably broken down, and emphasised that courts must consider the practical realities of a relationship rather than rely solely on formal or doctrinal positions.

The ruling is expected to guide future cases by affirming that the law should not compel individuals to remain in marriages that lack mutual support, companionship or respect.