Justice Lawrence Mugambi sitting at Milimani Law Courts dismissed the petition filed by Coppler Attorneys and Consultancy Firm seeking to legalize divorce by mutual consent in Kenya.
Delivering his ruling, Justice Mugambi stated that the petition lacked merit.
He emphasized that the court must uphold the broader interests of society, which include promoting the stability and success of marriages.
According to the Judge, It is in the interest of society to ensure success—not failure—of marriages.
The judge also noted that marriage is seen as the cornerstone of the family unit, which forms the foundation of social order.
He further explained that this societal interest is reflected in the Constitution, which recognizes and protects marriage under its family protection provisions.
Justice Mugambi highlighted that laws regulating marriage are designed to prevent hasty dissolutions and provide mechanisms to help couples reconcile before ending their unions.
“The law prescribes a period of separation to allow for reconciliation efforts through counselling, mediation, or other interventions,” he said.
In its petition, Coppler Lawyers had also asked the court to compel the National Assembly to amend the Marriage Act to include a provision allowing mutual consent divorces.
Justice Mugambi declined the request, affirming that courts cannot direct Parliament on how to legislate.
“The court cannot compel Parliament to enact a specific law. It can only intervene if legislation is unconstitutional,” he ruled.
Filed in 2022, the petition argued that the right to freely enter and leave any association, including marriage, should be constitutionally protected.
The Lawyers claimed that the current divorce process is overly burdensome and fault-based, often leading to public shaming, reputational damage, and high financial costs.
The petition also noted that this system discourages individuals—particularly those in abusive relationships—from seeking divorce due to the emotional and financial toll.
Additionally, it argued that children caught in divorce proceedings often suffer psychological harm and develop a negative perception of marriage due to their parents’ public disputes.
Despite these arguments, the court maintained that the existing legal framework serves a societal interest by preserving the institution of marriage wherever possible.
