[2014] KEHC 5007 (KLR)
The court found that the marriage between the petitioner and respondent was never consummated, as the parties did not live together as husband and wife after the ceremony. The respondent's failure to allow the petitioner into the matrimonial home, threats, and denial of conjugal rights constituted desertion and...
Source-derived case information.
- Citation
- [2014] KEHC 5007 (KLR)
- Parties
- Applicant: B W M; Respondent: I M E
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 146 of 2010
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Marriage nullified; decree nisi to issue; no order as to costs.
- Judges
- DN Musyoka
- Legal Topics
- Marriage Nullity, Desertion, Cruelty, Non Consummation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
B W M
Applicant
I M E
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be nullified on grounds of non-consummation, desertion, and cruelty.
- 2 Whether the petitioner is entitled to a decree of nullity.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent was never consummated, as the parties did not live together as husband and wife after the ceremony. The respondent's failure to allow the petitioner into the matrimonial home, threats, and denial of conjugal rights constituted desertion and cruelty. Since the respondent did not contest the petition, the petitioner's evidence was unchallenged. The court concluded that there was sufficient basis to nullify the marriage under the applicable law.
Court Disposition
Marriage nullified; decree nisi to issue; no order as to costs.
Orders
- The marriage celebrated between the petitioner and respondent on 29th March 2006 is hereby nullified.
- Decree nisi shall issue forthwith and may be made absolute after thirty (30) days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 146 OF 2010
BETWEEN
B W M……….......…….…..PETITIONER
AND
I M E……….................… RESPONDENT
JUDGEMENT
Marriage was celebrated between the parties herein on 29th March 2006 at the office of the Registrar of Marriages, Nairobi, under the Marriage Act, Cap. 150, Laws of Kenya. The marriage certificate issued serial number [particulars withheld] is attached to the petition. The couple did not live as husband and wife after the celebration on the marriage. There are no issues of the marriage.
The petition in this matter was filed in court on 9th November 2010. The petitioner accuses the respondent of desertion and cruelty. The particulars are that the respondent barred the petitioner from moving into the matrimonial home for unknown reasons, he frequently threatens the petitioner and has denied her conjugal rights. She avers that as a result she was forced to leave for the United States of America to be with her father.
The petition was served on the respondent on 10th June 2011, as evidenced by the affidavit of service sworn on 13th June 2011 by Nelson Saina. He did not enter appearance nor file an answer to the petition and a cross-petition. The registrar cleared the matter 13th October 2011 to proceed for hearing as an undefended cause.
The matter came for hearing on 3rd April 2014. The petitioner testified and gave vent to the allegations made in her pleadings. She stated that the differences between them arose from the very night of the wedding, and as a consequence the marriage was never consummated. Since there was no answer to her petition or a cross-petition, the allegations made in her petition were unchallenged and so was her oral evidence.
From the material before me, by way of pleadings and the oral evidence recorded at the trial, it is clear to me that there never was a marriage between the parties as after the ceremony at the office of the Registrar of Marriage on 29th October 2006, the parties never got to consummate it.
The orders that I am disposed to make are as follows:-
I hereby nullify the marriage celebrated between the petitioner and respondent on 29th March 2006;
Decreenisi shall issue forthwith, and may be made absolute after thirty (30) days;
There will be no orders as to costs.
SIGNED DATED and DELIVERED in open court this 30th day of May 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Maani for Mr. Mungi advocate for the petitioner.