And when the answer is no, the law increasingly allows people the dignity to walk away.
The manner in which courts have handled divorce case in the recent past proves that it is no longer just about law. It is about human relationships, conflict, and the gradual recognition that marriage, at its core, is a union of free will.
The evolution of divorce law, from rigid rules focused on blame to a more nuanced system centered on reality, dignity, and personal freedom.
Today, courts no longer ask only who is at fault, but rather whether the marriage itself still exists in any meaningful sense.
And when the answer is no, the law increasingly allows people the dignity to walk away.
Part X of the Marriage Act sets the stage. It provides for the grounds upon which a marriage may be dissolved. They include irretrievably broken marriage, adultery, cruelty, desertion for at least three years, and willful neglect for at least two years.
Other circumstances, such as failed reconciliation, long-term imprisonment of seven years or more, or incurable insanity certified by medical experts, also justify the end of a union.
Over time, these legal words have come to represent deeply personal struggles brought into the courtroom.
A major turning point came in 2020, when High Court Judge Reuben Nyakundi reshaped the legal landscape.
The judge quashed Section 66(1) of the Marriage Act, which had barred couples from seeking divorce within the first three years of marriage.
In the court’s reasoning, marriage was a union of willing partners, and those partners must remain free to leave when the relationship no longer serves its purpose.
To force them to stay, he held, was discriminatory and contrary to constitutional principles of equality.
Justice Nyakundi said marriage is a union of willing partners, hence they should be at liberty to leave any time they feel not contented.
This was after Mr Tukero ole Kina argued that Section 66 (1) of the Marriage Act, 2014, which provides that a party to a civil marriage may not petition the court for the separation or for the dissolution of the marriage, unless three years have lapsed since the celebration of the marriage, was unconstitutional.
“It is therefore my finding that Section 66 (1) is discriminatory and in violation of Article 27(4) to the extent that it arbitrarily limits parties that have celebrated a union under the auspices of a Civil Marriage to a three year wait period before such a union may be dissolved,” the Judge said.
Since then, courts began to move away from rigid preservation of marriage toward a more humane and realistic approach.
According to courts, when reconciliation fails, even after mediation under Article 159(2)(c) of the constitution, the breakdown of a marriage is often beyond repair.
In yet another case, Justice Nyakundi stated that a failed mediation process itself is a “red flag,” signaling that the relationship had deteriorated into bitterness and acrimony.
Justice Reuben Nyakundi.
The dispute, which pitted JKS against JGI started in 2020 when the man sought to annul the marriage. The couple got married in 2012 under Nandi and Embu customary laws and had four children.
Over time, their relationship deteriorated with the man accusing his former partner of cruelty, neglect, and desertion.
He cited incidents such as abandonment of the matrimonial home in 2015- for a period about four months and again in 2019, failure to perform family responsibilities, and even locking children in the house for days.
He argued that the marriage had become unbearable and that conjugal rights had ceased entirely since 2020.
The wife, however, painted a different picture as she denied the allegations and instead accused the former husband of physical and emotional abuse, including a serious incident of scalding her while she was breastfeeding.
She maintained that she had not deserted the marriage but had left to seek medical treatment and asked the court to dismiss the case.
Preservation of family unit
After hearing the case, the trial court sided with caution. It held that the grounds for divorce had not been proven to the required standard. The court ruled that misconduct must be grave and weighty enough to cause real harm.
The court emphasised the preservation of the family unit and even suggested that the marriage could still be redeemed.
The man was not satisfied with the decision and filed an appeal. He convinced the High Court that the marriage was irretrievably broken.
In the judgment last year, Justice Nyakundi ruled that the trial magistrate misdirected himself by failing to properly analyze mental cruelty, desertion, and the implications of failed mediation.
The court emphasized that cruelty is not only physical; it can also be mental, manifesting through insults, neglect, lack of companionship, and denial of conjugal rights.
The judge said in a society shaped by patriarchal norms, such emotional harm can be profound and legally significant.
“From the record in this appeal, one of the grievances raised by the appellant is the denial of conjugal rights by the respondent, which falls within the broader framework of sexual and reproductive health, recognized as a fundamental human right,” said the court.
The judge observed that for the man, the unavailability of essential conjugal rights and the difficulty in accessing them due to the conduct of the wife was also linked to the grievance of desertion.
The court further stated that the repeated departures from the matrimonial home, combined with prolonged separation and lack of cohabitation, were seen as evidence of both desertion and cruelty.
“In fact, the learned trial magistrate mentioned the issue of conjugal rights only in passing, without much legal analysis,” said the court.
The High Court rejected the notion that couples should be forced to remain in a dead marriage. The judge affirmed that marriage is a matter of free choice and that freedom must include the right to exit.
The court said though the right to love is not explicitly codified in law, it is deeply embedded in human dignity, freedom of association, and emotional well-being. When love disappears, the legal bond may remain but its human foundation collapses.
Ultimately, the appeal was allowed and the marriage was dissolved on the grounds of cruelty, desertion, and irretrievable breakdown.
The court made it clear that the law does not require individuals to endure emotional or psychological imprisonment in the name of marriage.
“Therefore, the dissolution of the marriage is the right solution, and the only way forward is for the appellant and the respondent to go their separate ways, open a new chapter, and run their respective races in life without the support of the other partner,” said the court.
In yet another decision in February this year, the High Court overturned a judgment of the lower court, which had declined to dissolve the marriage between SKK and EWK and instead granted ‘judicial separation’.
SKK moved to court in August 2021, seeking for dissolution of the marriage on grounds of cruelty, desertion and adultery by the part of the wife.
The woman denied the allegations and maintained that she still resided in the couple’s matrimonial home.
She equally pleaded desertion by the husband claiming that he deserted her sometimes in July 2020, without reasons. She prayed for judicial separation instead.
The man maintained that the marriage was unbearable and he didn’t want fighting but instead, wanted his children to have peace. He submitted that all efforts for reconciliation had failed.
The woman on her part said she only wanted separation not divorce. She stated that she was a Catholic and her church does not entertain divorce. The trial magistrate agreed with her and granted judicial separation.
On appeal, the High Court observed that for close to five years, the parties had not consummated the marriage and have not seen eye to eye.
The court faulted the trial court for granting the parties judicial separation, stating that it is a provisional remedy aimed at giving parties space to reconcile but cannot be imposed where reconciliation is no longer feasible, and where one party affirmatively seeks a permanent dissolution of marriage.
“The very essence of marriage being companionship, intimacy, and shared life has long ceased to exist in the Parties' union. The law does not require spouses to endure emotional, psychological, or social imprisonment under the guise of marriage,” said the court.
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