Milimani High Court Judge Lawrence Mugambi, on Thursday, April 24, 2025, dismissed a case filed by Coppler Attorneys and Consultancy Firm that sought to allow divorce by mutual consent.
Dismissing the case, Judge Mugambi stated that the petition lacked merit.
In his judgement, which he delivered virtually, Judge Mugambi also stated that it is in the interest of society to ensure that marriages do not fail but succeed, because it is from marriages that society comes from.
“The society’s interest in marriages is to ensure their success and not their failure, as it is considered that marriage is the basis of the stability of the family unit, which is in turn the foundation of the social order,” part of the judgment read.
He added that society’s interest can be confirmed by the fact that the constitution recognises marriage under the family protection clause.
Safeguarding marriages
Further, he stated that the intervention by society to safeguard marriages is seen through the law that regulates marriages, for instance, not allowing instant divorces.
Judge Mugambi also stated that the same law ensures that even when there are challenges between couples in a marriage, there is an opportunity for possible interventions to rescue the marriage from collapsing.
“The law prescribes a period of separation to give a chance for reuniting couples through counselling, reconciliation, mediation and any other form of intervention,” part of the judgement read.
Authority to legislate
Notably, the court declined the petitioner’s prayer to order the National Assembly (listed as the second respondent in the case) to amend and include a specific provision in the Marriage Act.
He stated that the court has no authority to direct Parliament to legislate in any particular way but can only stop Parliament from legislating in an unconstitutional manner.
“The Petitioner in prayer (iii) wants this Court to specifically compel Parliament to amend and include a specific provision in the Marriage Act; a feat that is constitutionally inconceivable as far as the Court is concerned,” part of the judgement added.
In a petition filed in 2022, against the Attorney General and the National Assembly, Coppler Attorneys and Consultancy Firm sought to have the right and freedom for people to enter and leave marriage at their own wish, without having to go through a tedious process.
Freedom of association
It added that the Constitution guarantees every citizen the right to enter an association of any kind, participate in the activities and right of exit at their own pleasure, a right that it states ought to apply to marriages as well.
Further, it stated that the parties at the end of their marriage are subjected to a fault-based litigation system, which sees the parties degrade and tarnish each other’s reputation in a bid to apportion blame on the other party.
It also argued that the cost of the divorce proceedings and the fault-based system have seen parties in abusive marriages choose to remain there, because they are not financially able to finance the process.
Coppler also contended that children from divorcing parties usually bear shame and public humiliation of their parents’ litigation battle in Court, which affects their mental health and distorts their belief in the institution of marriage.
Further, it argued that due to the combative nature of divorce proceedings, the relations between the parties are damaged, leading to difficulty co-parenting, and property distribution becomes a matter of life and death.
It stated that such court processes prevent the parties from co-existing peacefully, thus leading to some deciding to end their partner’s life, deeming it a less acrimonious litigation.