[2011] KEHC 1875 (KLR)

[2011] KEHC 1875 (KLR)

The court found that the marriage between the petitioner and the respondent was never consummated, not due to physical incapacity or impotence, but because the respondent insisted on consummation only by anal sexual intercourse, which the petitioner refused. The court held that such insistence, in the face of the petitioner's clear objection, amounted to wilful refusal by the respondent to consummate the marriage within the meaning of section 14(1)(b) of the Matrimonial Causes Act. The petitioner's evidence was unchallenged and credible. The court concluded that the petitioner did not condone or connive in the non-consummation, and therefore the marriage was a nullity.

Citation
[2011] KEHC 1875 (KLR)
Parties
Petitioner: A.W.K.; Respondent: G.D.
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
21 June 2011
Case Number
Divorce Cause 41 of 2010
Procedural Posture
Nullity of Marriage Cause / Judgment
Outcome
Petition allowed. Marriage declared a nullity. No order as to costs.
Judges
JV Juma
Legal Topics
Nullity of Marriage, Non Consummation, Matrimonial Causes Act, Wilful Refusal, Grounds for Nullity
Source Language
English
Family and Children Nullity of Marriage Non Consummation Matrimonial Causes Act Wilful Refusal Grounds for Nullity

Case Brief

Summary, issues, holding and outcome

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Parties

A.W.K.

Petitioner

G.D.

Respondent

Procedural Posture

Nullity of Marriage Cause / Judgment

Legal Issues

  1. 1 Whether the marriage between the petitioner and the respondent should be declared null and void due to non-consummation.
  2. 2 Whether the respondent's insistence on a specific form of consummation constitutes wilful refusal to consummate the marriage under section 14(1)(b) of the Matrimonial Causes Act.

Ratio Decidendi

The court found that the marriage between the petitioner and the respondent was never consummated, not due to physical incapacity or impotence, but because the respondent insisted on consummation only by anal sexual intercourse, which the petitioner refused. The court held that such insistence, in the face of the petitioner's clear objection, amounted to wilful refusal by the respondent to consummate the marriage within the meaning of section 14(1)(b) of the Matrimonial Causes Act. The petitioner's evidence was unchallenged and credible. The court concluded that the petitioner did not condone or connive in the non-consummation, and therefore the marriage was a nullity.

Court Disposition

Petition allowed. Marriage declared a nullity. No order as to costs.

Orders

  • The marriage between the petitioner and the respondent is declared a nullity.
  • No orders as to costs.