[2006] KEHC 3274 (KLR)
The court found that the marriage between the petitioner and respondent was never consummated and was entered into based on misrepresentation and fraud by the respondent. Furthermore, the respondent's prior marriage and children in Germany rendered the marriage incapable of recognition in Germany, and thus the...
Source-derived case information.
- Citation
- [2006] KEHC 3274 (KLR)
- Parties
- Petitioner: F A. M; Respondent: U H S
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Matrimonial Case 37 of 2005
- Procedural Posture
- Matrimonial Cause / Judgment
- Outcome
- petition allowed; marriage declared nullity
- Legal Topics
- Marriage Nullity, Non Consumation, Fraudulent Misrepresentation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
F A. M
Petitioner
U H S
Respondent
Procedural Posture
Matrimonial Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent was valid and subsisting.
- 2 Whether the marriage should be declared a nullity due to non-consummation and fraud.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent was never consummated and was entered into based on misrepresentation and fraud by the respondent. Furthermore, the respondent's prior marriage and children in Germany rendered the marriage incapable of recognition in Germany, and thus the parties could not live together as husband and wife. The court concluded that these factors satisfied the requirements for nullity under section 14 of the Matrimonial Causes Act, and therefore declared the marriage a nullity from the beginning.
Court Disposition
petition allowed; marriage declared nullity
Orders
- The marriage between the petitioner and respondent is declared a nullity.
- Decree nisi to issue in six (6) weeks.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Matrimonial Cause 37 of 2005
F A. M ........................................................................... PETITIONER
- Versus -
U H S ............................................................. RESPONDENT
Coram: Before Hon. Justice Mwera
Muinde for Petitioner
N/A for Respondent
J U D G M E N T
By the petition filed here on 30/5/2005, the petitioner F A pleaded that she married the respondent herein on 28/11/2003 at the registrar’s office at Nairobi. That after celebrating that marriage the two neither cohabited together nor consumated the union. That instead the respondent on the evening after the wedding, packed and left for his home country, Germany never to return. The petitioner was left behind. She added that her consent to marry was obtained when the respondent misrepresented to her that the marriage would enable her to easily get into the labour market in Germany. That the respondent also failed to disclose to the petitioner that he had six children in Germany from a previous marriage – a situation that could not permit the respondent to adopt the petitioner’s daughter. That in essence this marriage could not be recognised in Germany and so the two could not live together. And further that the respondent was a fugitive of the law. F sought a declaration that their marriage was a nullity.
She gave evidence before this court more or less on the same lines of the petition adding that she got the information about the respondents’ status back in Germany from his best man. The petitioner stressed that their marriage was never consummated and it was contracted on account of fraud and misrepresentation.
Mr. Muinde summarized the contents and effects of section 14 of the Matrimonial Causes Act (Cap 152) and asked the court to grant the orders sought with a decree nisi being issued for a shorter time than the usual six months.
After hearing the petitioner, this court is satisfied that because the marriage was never consumated, it was actually a nullity from the beginning.Even had that happened, there is the fact of this other marriage in Germany with six children and particularly that the marriage of these two here could not be recognised there.
In the result the marriage herein is declared null. Decree nisi to issue in six (6) weeks and thereafter decree absolute to issue.
Judgment accordingly.
Delivered 5/1/2006
J.W. MWERA
JUDGE