Case Brief
In a landmark 2025 High Court ruling (JKS v JGI), Justice R. Nyakundi redefined what can be considered as valid reasons for divorce in Kenya. This case has expanded the meaning of “cruelty,” “desertion,” and “irretrievable breakdown” making it easier for spouses to legally end a marriage that has become dysfunctional or emotionally harmful, even without physical abuse.
Facts:
The appellant (JKS) and respondent (JGI) contracted a customary marriage in 2012 under Nandi and Embu customary laws through which they sired four children.
The appellant petitioned for divorce in 2020 on grounds of cruelty, desertion, negligence, and claimed that the marriage had irretrievably broken down.
The respondent denied the allegations. The case went through court‐annexed mediation, but failed to resolve. The trial court (Magistrate Hon. R. Odenyo) dismissed the petition in May 2023, finding that the appellant had not proved the grounds sufficiently.
Issues before the High Court on Appeal:
Whether the appellant had proved, on a balance of probabilities, that the grounds of divorce i.e. cruelty, desertion, negligence, irretrievable breakdown were made out.
Whether, if those grounds were proved, the appellant is entitled to the orders sought i.e., dissolution and on what terms.
Who should bear the costs of the appeal.
Decision:
The High Court allowed the appeal, setting aside the trial court’s judgment and granting the divorce.
Justice Nyakundi held that the appellant had satisfied the legal threshold for cruelty, desertion, and that the marriage had irretrievably broken down.
That the trial court had erred in how it evaluated the evidence, including by failing to appreciate certain conduct cumulatively (emotional abuse, locking children in, neglect, refusal of communication, intimacy, etc.), as amounting to cruelty or constructive desertion.
Key Legal Principles introduced by the judgement:
The court has expanded what counts as cruelty and desertion in a marriage. It now includes emotional abuse, neglect, and lack of support, not just physical violence or leaving the home.
Justice Nyakundi explained that “Cruelty” goes beyond physical violence – it also includes emotional abuse, neglect, failure to fulfil marital responsibilities, verbal insults, denial of affection, communication or conjugal rights, and even public humiliation.
On the issue of “Desertion,” the Judge clarified that it can be constructive – meaning it doesn’t require physical separation. It also includes situations where a spouse withdraws from fulfilling the written and unwritten duties that are essential for the marriage to function.
A marriage can be ended if it has completely broken down and can’t be repaired. The court also looks at how each spouse has behaved, and whether they are still willing to stay in the marriage.
In its judgement the court explained that if one or both spouses are no longer willing to be part of the marriage, then the relationship loses its meaning and the law allows the marriage to be legally ended.
The court chose to look at the bigger picture of considering a spouse’s behaviour over time, not just single or isolated incidents.
The court must carefully and fairly assess the evidence, using a reasonable standard and it should do so with understanding and sensitivity to the emotional issues involved.
Courts shouldn’t force people to stay in unhappy marriages just because the legal paperwork is in order. They should look at whether there’s real love, support, and connection not just what is written in the law.
How this ruling will affect divorce cases in Kenya going forward:
This decision has several important implications, both doctrinally and practically.
The definition of cruelty and desertion has been expanded to include emotional neglect, lack of affection, and failure to support your spouse not just physical violence or walking out.
Spouses can now use things like emotional distance, lack of communication, or failure to carry out responsibilities as valid reasons for divorce even if those issues were once seen as minor.
Courts are now more likely to look closely at the emotional and relationship issues in a marriage, not just physical abuse or someone leaving the matrimonial home.
The courts now more openly accept that a marriage can end simply because it’s completely broken and cannot be fixed.
The court confirmed that if a marriage is clearly broken beyond repair, you can still get a divorce even if you have not been separated for years as long as you can prove the relationship cannot be saved.
This makes it easier for people stuck in unhappy marriages to file for divorce, especially if they thought the law didn’t support their reasons before.
The court now looks at the overall pattern of behaviour in a marriage not just one-time incidents to decide if there’s a valid reason for divorce.
Things that once seemed too small to matter on their own may now count as valid evidence if they’re part of a repeated pattern in the marriage.
Lawyers handling divorce cases will now need to gather detailed evidence showing different types of bad behaviour over time not just one or two incidents.
The ruling reinforces that your basic rights under the Constitution like dignity, respect, and fair treatment are strongly protected in marriage and divorce cases.
Your rights to freely agree to the marriage, be treated with dignity, live free from cruelty, and have equal standing in the marriage are now clearly connected to valid reasons for divorce.
The ruling may lead to a rise in contested divorce petitions and subsequent appeals, as parties challenge the expanded grounds and interpretations introduced by the decision.
With the expanded legal interpretation of cruelty and desertion, an increase in appeals to the High Court is expected when magistrate courts dismiss divorce petitions.
Practitioners should anticipate increased litigation concerning the definitions of cruelty and desertion, with a greater emphasis on relational duties and patterns of behaviour over an extended period.
The ruling highlights an ongoing tension between the need for legal certainty and the exercise of judicial discretion in interpreting and applying divorce grounds.
While the broadened interpretation enhances access to relief for aggrieved spouses, it also introduces potential challenges in consistency particularly regarding subjective thresholds, such as what constitutes “withdrawal of affection” or the required degree and frequency of emotional abuse.
An increase in borderline or ambiguous cases is likely, making precedents such as this decision critical in shaping consistent guidance for lower courts.
What this could mean for laws and policies
Lawmakers might need to make clear and specific changes to the Marriage Act to better define important terms like “cruelty,” “desertion”, and “irretrievable breakdown of marriage.” This would help ensure that people understand their rights and obligations more clearly, and that courts apply the law more consistently.
There may be a need for policy discussions on introducing “no-fault divorce” or making the divorce process easier when it’s clear that the marriage has broken down. This could help reduce the emotional stress, financial burden, and social impact that come with long and difficult court cases.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. You should consult with a qualified legal professional for advice on your specific situation.