[2014] KEHC 8413 (KLR)
The court found that the respondent was already married to another man under Kikuyu Customary Law at the time she purported to marry the petitioner, and that this fact was concealed from the petitioner. This constituted a lack of capacity to marry, rendering the marriage between the petitioner and respondent null...
Source-derived case information.
- Citation
- [2014] KEHC 8413 (KLR)
- Parties
- Petitioner: C K M; Respondent: N W K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 244 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Petition allowed. Marriage annulled. Custody of children granted to petitioner. Costs awarded to petitioner.
- Judges
- AO Muchelule
- Legal Topics
- Marriage Annulment, Custody of Children, Capacity to Marry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C K M
Petitioner
N W K
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be annulled due to lack of capacity on the part of the respondent.
- 2 Whether the petitioner should be granted custody of the children.
Ratio Decidendi
The court found that the respondent was already married to another man under Kikuyu Customary Law at the time she purported to marry the petitioner, and that this fact was concealed from the petitioner. This constituted a lack of capacity to marry, rendering the marriage between the petitioner and respondent null and void ab initio. The respondent did not contest the petition or provide any evidence to the contrary. The court also found that the petitioner, who had been staying with the children, was entitled to their custody. Accordingly, the court granted the annulment of the marriage and awarded custody of the children to the petitioner.
Court Disposition
Petition allowed. Marriage annulled. Custody of children granted to petitioner. Costs awarded to petitioner.
Orders
- The marriage between the petitioner and respondent is annulled and declared null and void ab initio.
- Custody of the children A and G is granted to the petitioner.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
DIVORCE CAUSE NO. 244 OF 2013
C K M…………….................…….PETITIONER
VERSES
N W K……………………......RESPONDENT
JUDGMENT
1. The petitioner’s evidence was not challenged as there was no answer filed to the petition.
2. The petitioner married the respondent on 2nd July 2008 at the Registrar’s office in Nairobi. The marriage was on 11th October 2009 blessed with a child G M K. In 2010 the couple visited the respondent’s home and was surprised to learn that she had another child A W K. This fact had been hidden from him. He further found out that the respondent was earlier married to one P K under Kikuyu Customary Law. He was the father of A. They returned to the matrimonial home, but in July 2012 the respondent returned to her husband P K where she stays up to now.
3. The petitioner seeks the annulment of the marriage. I grant the prayer. The marriage was null ab initio as the respondent had no capacity to marry as she was in another relationship.
4. The petitioner stays with A and G and seeks their custody. The request is granted.
5. The respondent shall pay costs of the petition.
DATED and DELIVERED at NAIROBI this 18th September 2014
A.O. MUCHELULE
JUDGE