[2014] KEHC 5008 (KLR)
The court found that, based on the pleadings and uncontroverted oral evidence of the petitioner, the parties never lived together as husband and wife after the marriage ceremony. The respondent failed to testify or provide evidence to support her claims of cohabitation or cruelty. The court concluded that the...
Source-derived case information.
- Citation
- [2014] KEHC 5008 (KLR)
- Parties
- Petitioner: E W M; Respondent: R V K A
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 193 of 2001
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- marriage nullified; decree nisi to issue; no order as to costs
- Judges
- DN Musyoka
- Legal Topics
- Nullity of Marriage, Non Cohabitation, Consummation, Divorce Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E W M
Petitioner
R V K A
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent was ever consummated.
- 2 Whether there was cohabitation between the parties after the marriage ceremony.
- 3 Whether grounds exist for nullification of the marriage.
Ratio Decidendi
The court found that, based on the pleadings and uncontroverted oral evidence of the petitioner, the parties never lived together as husband and wife after the marriage ceremony. The respondent failed to testify or provide evidence to support her claims of cohabitation or cruelty. The court concluded that the marriage was never consummated and, therefore, grounds existed for nullification. The marriage was declared null and void, with a decree nisi to issue forthwith and become absolute after thirty days.
Court Disposition
marriage nullified; decree nisi to issue; no order as to costs
Orders
- The marriage celebrated between the petitioner and respondent on 1st August 2003 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
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 193 OF 2011
BETWEEN
E W M……........…….…..PETITIONER
AND
R V K A.....................…RESPONDENT
JUDGEMENT
Marriage was celebrated between the parties herein on 1st August 2003 at the office of the Registrar of Marriages, Mombasa, 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 20th December 2011, and was amended by an order of this court made on 11th April 2013. . The petitioner avers that they have never lived together has husband and wife after the celebration of the marriage in 2003.
The petition was served on the respondent and she entered appearance and filed an answer to the petition and a cross-petition. She denied the contents of the petition and alleged that there was cohabitation after the parties moved to the United States of America, and continued to live together for the next four years before there was a fallout. She avers that she had also filed a divorce cause in the United States of America seeking dissolution of her marriage to the petitioner. She contends that this cause was filed to frustrate the case in the United States. The cross-petition accuses that petitioner of cruelty, with particulars to support her grounds.
The registrar cleared the matter 13th October 2011 to proceed for hearing as a defended cause.
The matter came for hearing on 25th November 2013, when the petitioner testified and gave vent to the allegations made in his pleadings. He stated that the parties never lived together not even for one night.
After the oral evidence was taken counsel for the respondent asked for time to call the respondent to testify on her part. This was not to be. On 27th March 2014 the court ordered the respondent’s case closed, and proceeded to fix the matter for judgement. The petitioner’s oral evidence was consequently not controverted, and the respondent did not breathe life to her allegations in the pleadings.
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 1st August 2003, the parties never lived together and therefore did not get the opportunity to consummate it.
The orders that I am disposed to make in the circumstances are that:-
I hereby nillify the marriage celebrated between the petitioner and respondent on 1st August 2003;
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 ofMr. Odija for Mrs. Thongori advocate for the petitioner.