[2016] KEHC 8441 (KLR)
The court found that the respondent's complete refusal to consummate the marriage and her refusal to live with the petitioner since the marriage was solemnized constituted cruelty under Section 66 of the Marriage Act. The court held that marriage is entered into for love and companionship, not rejection, and that...
Source-derived case information.
- Citation
- [2016] KEHC 8441 (KLR)
- Parties
- Applicant: E K C K; Respondent: D W G
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 11 November 2016
- Case Number
- Divorce Cause 11 of 2015
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- marriage dissolved
- Judges
- REA Ougo
- Legal Topics
- Dissolution of Marriage, Cruelty, Adultery, Non Consummation, Marriage Act, Emotional Distress
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
E K C K
Applicant
D W G
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's refusal to consummate the marriage amounts to cruelty under the Marriage Act.
- 2 Whether the petitioner has proved the ground of adultery against the respondent.
- 3 Whether the marriage should be dissolved based on the evidence presented.
Ratio Decidendi
The court found that the respondent's complete refusal to consummate the marriage and her refusal to live with the petitioner since the marriage was solemnized constituted cruelty under Section 66 of the Marriage Act. The court held that marriage is entered into for love and companionship, not rejection, and that the emotional distress suffered by the petitioner as a result of the respondent's conduct satisfied the legal threshold for cruelty. The ground of adultery was not proved. The petitioner successfully proved cruelty, warranting dissolution of the marriage. Accordingly, the marriage between the parties was dissolved, with a decree nisi to issue and be made absolute within 30 days....
Court Disposition
marriage dissolved
Orders
- The marriage between E K C K and D W G celebrated on 6th April 2012 is dissolved.
- A decree nisi to issue and to be made absolute within 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
DIVORCE CAUSE NO 11 OF 2015
E K C K………..................………APPLICANT
VERSUS
D W G………………………..RESPONDENT
JUDGMENT
1. The petitioner married the respondent at the Office of the Registrar of Marriages on the 6th of April 2012. After the celebration of the marriage, they did not cohabit as husband and wife and the said marriage was not consummated.
2. The petitioner has pleaded grounds of cruelty and adultery and states in his petition that the respondent refused to consummate the marriage causing him heartache and emotional distress and that the respondent has refused to live with him since the marriage was solemnized. He claims that the respondent openly admitted that she is in a relationship with another man.
3. The petitioner therefore seeks that the marriage be dissolved.
4. The divorce cause proceeded as undefended cause and the respondent reiterated what is averred in the petition. He testified that the respondent’s refusal to consummate the marriage caused him to be affected emotionally and that he could not even work. That when he talked with the respondent she openly told him that she was seeing another man even after they got married and that she did not want to be with him.
5. The petitioner was granted leave by Hon. Justice A. Muchelule on 20th November 2104 to file the petition before the lapse of 3 years. Under the Marriage Act no. 4 of 2014, the grounds for dissolution of a civil marriage is stipulated at Section 66, one of the grounds is cruelty. It is the petitioner’s evidence that the respondent completely refused to consummate their marriage and this caused him emotional distress. In my view this amounts to cruelty. In a marriage people get married because they love each other, for companionship and not rejection. The ground of adultery has not been proved. The petitioner has proved the ground of cruelty. I therefore dissolve the marriage between the petitioner E K C K and the respondent D W G celebrated at the Office of the Registrar of Marriages in Nairobi on the 6th Day of April 2012. A decreenisi to issue and to be made absolute within 30 days. No orders as to costs.
Dated, signed and delivered this 11th Day of November 2016
R. E. OUGO
JUDGE
In the presence of:
……………………………………………………..For the Petitioner
……………………………………………..……For the Respondent
Ms Charity Court Clerk