[2006] KEHC 343 (KLR)
The court found that the marriage between the petitioner and respondent had not been consummated since its celebration approximately six years prior. The petitioner's evidence was uncontroverted, and there was no appearance or response from the respondent. The court held that the appropriate remedy in such...
Source-derived case information.
- Citation
- [2006] KEHC 343 (KLR)
- Parties
- Petitioner: E.W.G; Respondent: F.K.N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 41 of 2006
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage declared null and void; costs to petitioner
- Legal Topics
- Nullity of Marriage, Non Consummation, Marriage Act Cap 150
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E.W.G
Petitioner
F.K.N
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be dissolved or declared null and void due to non-consummation.
- 2 Whether the petitioner is entitled to costs of the petition.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent had not been consummated since its celebration approximately six years prior. The petitioner's evidence was uncontroverted, and there was no appearance or response from the respondent. The court held that the appropriate remedy in such circumstances is a decree of nullity rather than a decree of divorce. Accordingly, the marriage was declared null and void, and a decree nisi was issued, to be made absolute after 30 days upon application. The respondent was ordered to bear the costs of the petition.
Court Disposition
petition allowed; marriage declared null and void; costs to petitioner
Orders
- A decree of nullity of the marriage between the petitioner and respondent is pronounced.
- Decree nisi to issue forthwith, to be made absolute after expiry of 30 days upon application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 41 of 2006
E.W.G…......…………..…………. PETITIONER
VERSUS
F.K.N………………..…………. RESPONDENT
JUDGMENT
On 23. 03. 06 the petitioner filed petition praying for the following orders:-
1. That the marriage between the petitioner and respondent be dissolved and a divorce granted.
2. That the respondent be condemned to pay costs of this cause.
3. That this honourable court do grant other and further relief as it may deem fit and just.
Salient facts of the petition are as under. The petitioner and respondent reside and are domiciled in Kenya. They got married on 31. 03. 2000 at the Shrine of Mary Help of Christians, Nairobi under the Marriage Act, Cap.150. They cohabited in Nairobi between March, 2000 and May, 2001. There is no issues of the marriage. It was the petitioner’s case that since celebration of the marriage the parties have been incapable of consummating the marriage. The petitioner added that she was not accessory to nor did she condone the respondent’s inability to consummate the marriage. Petitioner further deposed that she and the respondent did not collude to have this petition filed.
There is in the court file an affidavit by Jane W. Matenguri, process server to the effect that on 10. 04. 06 she served the petition herein and two copies of notices upon the respondent. There is no evidence in the file that the respondent either entered appearance or filed answer to the petition. Also in the file is an affidavit by Claire Nanjala Wanjama, an Advocate of the High Court of Kenya
confirming that she served the respondent with requisite hearing notice but the respondent never turned up for the hearing of the petition herein. The cause, therefore, proceeded as an undefended cause.
Hearing of the petition was on 26. 10. 06. At the hearing the petitioner was represented by learned counsel, Miss A.N. Muniafu. There was no appearance for the petitioner.
I have duly considered the petitioner’s case. She appeared before me on 26. 10. 06 and formally adopted her pleadings. The petitioner’s evidence is uncontroverted and I accept it. The marriage has not been consummated since it was contracted about 6 years ago. In the circumstances, the correct prayer should be for a decree of nullity of the marriage. Accordingly, I hereby declare null and void and pronounce a decree of nullity of the marriage between the petitioner and respondent. Decree nisi shall issue forthwith, the same to be made absolute after expiry of 30 days, upon application therefor. The respondent shall bear the plaintiff’s costs of the petition.
Orders accordingly.
Delivered at Nairobi this 16th day of November, 2006.
B.P. KUBO
JUDGE