[2010] KEHC 57 (KLR)
The court found that the respondent was still legally married to R.G.K.M at the time she purported to marry the petitioner, as evidenced by the marriage certificate produced in court. There was no evidence of a divorce from the prior marriage. Under Section 11(1)(d) of the Marriage Act, this lack of capacity...
Source-derived case information.
- Citation
- [2010] KEHC 57 (KLR)
- Parties
- Petitioner: G.W.N; Respondent: C.F.A
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 126 of 2007
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition for nullity of marriage allowed; marriage declared null and void
- Judges
- LK Kimaru
- Legal Topics
- Nullity of Marriage, Bigamy, Capacity to Marry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G.W.N
Petitioner
C.F.A
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent had legal capacity to marry the petitioner.
- 2 Whether the marriage between the petitioner and respondent is null and void due to subsistence of a prior marriage.
Ratio Decidendi
The court found that the respondent was still legally married to R.G.K.M at the time she purported to marry the petitioner, as evidenced by the marriage certificate produced in court. There was no evidence of a divorce from the prior marriage. Under Section 11(1)(d) of the Marriage Act, this lack of capacity rendered the subsequent marriage to the petitioner null and void. The court therefore declared the marriage between the petitioner and respondent a nullity and issued a decree nisi, to be made absolute in thirty days.
Court Disposition
petition for nullity of marriage allowed; marriage declared null and void
Orders
- The marriage celebrated between the petitioner and the respondent on 7th January 2004 is declared null and void.
- Decree nisi is issued granting the petition for nullity of marriage.
Full Case Text
Judgment text and source record
19 paragraphs
DATED AT NAIROBI THIS 25TH DAY OF FEBRUARY 2010
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
DIVORCE CAUSE NO.126 OF 2007
G.W.N……………………….....….…….………………..………………………..PETITIONER
VERSUS
C.F.A…………………………….......…..…………………………….……………RESPONDENT
J U D G M E N T
G.W.N (the petitioner) married C.F.A (the respondent) on 7th January 2004 under the Marriage Act. After celebration of the said marriage, the petitioner and the respondent cohabited together as husband and wife at South C estate in Nairobi. There is no issue born to the said marriage. According to the petitioner, sometime after the said marriage, he discovered that the respondent was infact still legally married to one R.G.K.M having been so married on 25th April [....]at Lavington United Church Nairobi. The petitioner averred that when he confronted the respondent with this information, the respondent left the matrimonial home never to return. It is for the above reason that the petitioner was seeking the intervention of this court to have the said marriage declared null and void and consequently he be divorced from the respondent.
The respondent was served with a copy of the petition. She failed to enter appearance within the requisite period. Neither did she file any papers in answer to the petition. The Deputy Registrar of this court issued a certificate allowing the petitioner to proceed with the hearing of the petition, the absence of the respondent notwithstanding. At the hearing of the petition, the petitioner adduced oral evidence essentially reiterating the contents of the petition for divorce. I have carefully considered the said evidence. The petitioner indeed established that the respondent lacked legal capacity to celebrate a marriage with the petitioner because she was still married to one R. G.K.M. The petitioner produced a certificate of marriage under the African Christian Marriage and Divorce Act (Cap 151) which established that indeed the respondent celebrated the said marriage on 25th April 1998 at Lavington United Church Nairobi. There is no evidence to suggest that the respondent was divorced from the said R.G.K.M before she purported to enter into the subsequent marriage with the petitioner. Under Section 11(1)(d) of the Marriage Act, to constitute a valid marriage under the said Act,
“neither of the parties with the intended marriage is married under African Customary Law or in accordance with Mohammedan law to any person other than the person with whom such marriage is proposed to be contracted.”
Section 42 of the same Act provides that where a person celebrates a marriage, with a person whom he or she knows to be married to another person shall be liable to imprisonment for a period not exceeding five (5) years. The offence is known as bigamy.
In the premises therefore, this court will allow the petition for nullity of marriage. The marriage celebrated between the petitioner and the respondent on 7th January 2004 is hereby declared null and void. The respondent had no capacity to enter into a marriage with the petitioner. Decree nisi is hereby issued granting the said petition for nullity of marriage. The said decree shall be made absolute thirty (30) days from today’s date. There shall be no orders as to costs.
DATED AT NAIROBI THIS 25TH DAY OF FEBRUARY 2010
L. KIMARU
JUDGE
L. KIMARU
JUDGE