Is marriage a home where affection grows, or has it too often been mistaken for a prison where couples silently serve time together? For generations, the law seemed to recognize only the most visible wounds — bruises, abandonment, or outright adultery — as grounds for divorce in Kenya. Yet, the quieter suffering of emotional neglect, constant insults, or financial deprivation often slipped through legal cracks, leaving spouses trapped in unions that had lost their essence. Justice Reuben Nyakundi’s recent ruling, by widening the definition of cruelty to include emotional and psychological neglect, signals a new way of understanding what truly breaks a marriage.

This development stands in stark contrast to the past, when separation was almost unthinkable unless cruelty was proven through severe physical harm. I remember Jackline Mwende, the woman whose hands were chopped off by her husband after being accused of infertility — only for her to later conceive in a new relationship while he served his prison sentence. Her story shows how outdated ideas of marriage — that a spouse must endure suffering in silence — have cost lives, dignity, and hope. Marriage should never be about choosing the right cellmate; it must remain an institution built on mutual commitment, companionship, and respect. The law, as it evolves, seems to be moving toward that vision.

Cruelty Reimagined Under Kenyan Law

The Marriage Act, 2014 and the Matrimonial Causes Act (Cap 152) both recognize cruelty as a ground for divorce, but the statutes do not spell out its meaning. Traditionally, Kenyan courts required proof of physical injury or danger to health to establish cruelty (see N v N [2008] eKLR). Justice Reuben Nyakundi, however, has expanded this view, noting that cruelty may also include emotional, psychological, and financial abuse.

In his judgment, he stated that when affection, companionship, and intimacy are deliberately withheld over time, the law should not force spouses to remain in what is essentially a hollow marriage. Occasional quarrels or moments of anger are not enough, but a consistent pattern of neglect, contempt, or financial abandonment may now meet the threshold of cruelty. He also affirmed that withholding intimacy, or making it impossible, can amount to constructive desertion — another form of cruelty in law.

The Broad Facets of Cruelty

Justice Nyakundi’s ruling points to cruelty as a spectrum, not just physical assault. The following dimensions illustrate its breadth under Kenyan family law:

Emotional and Psychological Cruelty: repeated insults, belittling, humiliation before children or family, persistent hostility, or deliberate isolation.

Neglect and Withdrawal of Companionship: refusal to communicate, emotional detachment, or absence of shared life over time.

Constructive Desertion: withholding conjugal rights or affection, thereby making marital life impossible.

Financial Cruelty: refusal to provide basic needs, unfair denial of access to family resources, or economic manipulation.

Domestic Violence: physical injury such as assault or, in extreme cases, attacks that endanger health or life.

This broader reading ensures that cruelty is not measured only by visible scars but also by the invisible injuries of neglect and contempt.

The Case of JM v AK

The case before Justice Nyakundi involved a Nairobi couple, JM and AK, married in 2012 under Nandi and Embu customary law, with four children. JM alleged that his wife treated him with contempt, emotionally abused him, and abandoned her duties as a spouse. He claimed she once locked their children indoors for three days and deserted the matrimonial home, leaving him to shoulder family responsibilities.

AK countered that JM was the one who had been cruel. She produced evidence that he had scalded her breast with hot water while she was breastfeeding, causing serious injury that required medical treatment. She also argued that he had neglected his financial duties, forcing her to rely on her family. Her defense maintained that she had not deserted the marriage, only temporarily sought refuge after the violence.

Justice Nyakundi considered both accounts and found that cruelty was present in multiple forms — physical, emotional, and financial. He observed that no one should be forced to remain in a marriage that has effectively ended, even if only one spouse appears to carry visible scars. The High Court dissolved the marriage, overruling the lower court’s refusal to grant divorce.

Free Consent and Constitutional Foundations

At the heart of this ruling lies the principle of free consent. Consent is not a one-time event at the altar; it must endure through companionship, intimacy, and mutual respect. When one spouse’s conduct destroys the possibility of a willing partnership, consent is eroded, and the marriage becomes coercive.

The Constitution of Kenya (2010) provides strong support for this interpretation. Article 28 guarantees human dignity, Article 45 recognizes the right to marry and to form a family, while Article 27 provides equality before the law. Forcing spouses to remain in marriages marked by cruelty violates these guarantees and undermines the spirit of freedom and dignity. Justice Nyakundi’s interpretation aligns divorce law with these constitutional values, ensuring that individuals are not condemned to silent suffering.

The Legal Significance of the Ruling

Justice Nyakundi’s decision marks a significant shift in Kenyan matrimonial law:

Expanded Grounds for Divorce: cruelty now includes emotional neglect, financial deprivation, and psychological abuse.

Recognition of Constructive Desertion: withholding intimacy or affection is legally significant.

Holistic Approach to Evidence: courts should examine patterns of behavior, not isolated incidents.

Constitutional Harmony: the ruling aligns divorce law with dignity, equality, and autonomy.

Corrective Role of the High Court: it discourages lower courts from forcing spouses to remain in marriages “on life support.”

This case sets precedent for future divorce petitions, reflecting the lived realities of Kenyan families and modern interpretations of justice.

Conclusion

The expansion of cruelty as a ground for divorce is not a celebration of separation but a recognition of dignity. A marriage should not be reduced to endurance of pain, silence, or neglect. It must remain an institution of mutual commitment, care, and companionship. By acknowledging emotional neglect, financial cruelty, and the withdrawal of affection as valid grounds for divorce, the law has taken a step toward protecting individuals who have long endured invisible suffering. Justice Nyakundi’s ruling in JM v AK signals a more humane, realistic, and constitutionally grounded approach to family law in Kenya.