[2011] KEHC 3484 (KLR)
The court found that the respondent was still legally married to L.N. at the time he purported to marry the petitioner, as evidenced by the decree nisi dissolving the previous marriage being issued after the marriage with the petitioner. The respondent's failure to respond or contest the petitioner's evidence...
Source-derived case information.
- Citation
- [2011] KEHC 3484 (KLR)
- Parties
- Petitioner: F.A.S; Respondent: G.M.M
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 20 of 2009
- Procedural Posture
- Divorce Petition / Judgment
- Outcome
- petition allowed; marriage declared a nullity
- Legal Topics
- Marriage Nullity, Capacity to Marry, Bigamy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
F.A.S
Petitioner
G.M.M
Respondent
Procedural Posture
Divorce Petition / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent was a nullity due to the respondent's lack of capacity to marry at the time of the ceremony.
- 2 Whether the respondent was still married to another person at the time of the marriage with the petitioner.
Ratio Decidendi
The court found that the respondent was still legally married to L.N. at the time he purported to marry the petitioner, as evidenced by the decree nisi dissolving the previous marriage being issued after the marriage with the petitioner. The respondent's failure to respond or contest the petitioner's evidence further supported the petitioner's case. The court held that the respondent lacked the legal capacity to marry the petitioner, rendering the marriage a nullity ab initio. Consequently, the court declared the marriage void and ordered the issuance of a decree nisi, to be made absolute after one month.
Court Disposition
petition allowed; marriage declared a nullity
Orders
- The marriage between the petitioner and respondent is declared a nullity.
- Decree nisi to issue forthwith and to be made absolute after one month.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
DIVORCE NO. 20 OF 2009
F.A.S...........................................................................................................PETITIONER
VERSUS
G.M. M....................................................................................................RESPONDENT
JUDGEMENT
F.A.S, the Petitioner and G.M.M, the respondent, were married on 12th October, 2006 under the Marriage Act (Cap 150 Laws of Kenya. They were duly issued with a Marriage Certificate. They were not blessed with any issue. They lived and cohabited in Kitale until the year 2007 when the petitioner discovered that the respondent had, at the time of celebration of their marriage, been married to one L.N. She subsequently lodged this petition on 6th October, 2009 on the grounds that their marriage was a nullity.
The respondent filed no answer to the petition. The petition came up for hearing before me on 7th March, 2011, when the Petitioner testified that the respondent, at the time of their marriage, on 12th October, 2006 had no capacity to enter into a marriage with her. She produced a copy of a Certificate of making decree nisi absolute in Nairobi Milimani Commercial Court Divorce Cause No. [....] between the Respondent and the said L.N.Min support of her petition. The Certificate indicated that a decree nisi in the said cause had been issued on 24th October, 2006 dissolving the said marriage.
The decree nisi was made absolute on 6th June, 2007. In the premises the Petitioner testified that when she and the respondent married on 12th October, 2006, the respondent was still married to the said L.N. He therefore had no capacity to marry her. She therefore prayed that her marriage with the respondent be nullified.
Having heard the Petitioner’s testimony, which was not contradicted, I find that the Petitioner has established the ground seeking the declaration aforesaid. The respondent knew of his marriage to the said L.N and wilfully entered into marriage with the Petitioner. The respondent had obviously no capacity to marry the petitioner. In the premises, I am satisfied that the marriage between the Petitioner and the Respondent is a nullity. The same is so declared. Decree nisi should issue forthwith. The same shall be made absolute after one month thereafter.
The respondent shall pay the petitioner’s costs.
Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 28TH DAY OF MARCH, 2011
F. AZANGALALA
JUDGE
Read in the presence of:-
Mr. Were for the Petitioner
F. AZANGALALA
JUDGE
28TH MARCH 2011