[2012] KEHC 730 (KLR)
The court found that the Respondent willfully and unreasonably refused to consummate the marriage, as evidenced by the lack of cohabitation and the Petitioner's unchallenged testimony. The Respondent's absence and failure to defend the petition further supported the Petitioner's case. The court was satisfied that...
Source-derived case information.
- Citation
- [2012] KEHC 730 (KLR)
- Parties
- Petitioner: J.P; Respondent: G.W
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 81 of 2011
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Decree of nullity granted; decree nisi to issue forthwith and to be made absolute after three months; no order as to costs.
- Judges
- D Schofield
- Legal Topics
- Nullity of Marriage, Non Consumation, Matrimonial Causes Act, Civil Marriage, Decree Nisi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.P
Petitioner
G.W
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the Respondent willfully refused to consummate the marriage.
- 2 Whether the Petitioner acquiesced in the Respondent's refusal to consummate the marriage.
- 3 Whether the marriage should be nullified under the Matrimonial Causes Act.
Ratio Decidendi
The court found that the Respondent willfully and unreasonably refused to consummate the marriage, as evidenced by the lack of cohabitation and the Petitioner's unchallenged testimony. The Respondent's absence and failure to defend the petition further supported the Petitioner's case. The court was satisfied that the Petitioner had not acquiesced in the Respondent's refusal to consummate the marriage. Accordingly, the court held that the statutory grounds for nullity under the Matrimonial Causes Act were met and pronounced a decree of nullity of the marriage, with a decree nisi to issue forthwith and to be made absolute after three months, in accordance with the law.
Court Disposition
Decree of nullity granted; decree nisi to issue forthwith and to be made absolute after three months; no order as to costs.
Orders
- A decree nisi of nullity of marriage between the Petitioner and Respondent shall issue forthwith.
- The decree nisi shall be made absolute after the expiry of three months from this pronouncement, subject to Section 15 of the Matrimonial Causes Act.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Divorce Cause 81 of 2011
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J.P……................................................................................ PETITIONER
VERSUS
G.W……………................................................................ RESPONDENT
JUDGEMENT
1. J.P,the Petitioner, in this cause seeks nullification of his marriage to G.W,theRespondent, in this cause on the ground that the Respondent willfully refused to consummate the marriage.
2. The provisions of Sections 13 and 14 (1) (b) of the Matrimonial Causes Act (which governs the civil marriage which was solemnized on 27. 11. 2009 at the Attorney General’s Chambers, Sheria House, Nairobi as evidenced by the Marriage Certificate No.149994) allow either party to the marriage to petition for nullification of the marriage on the grounds, inter alia that the other party willfully refused to consummate the marriage. The parties did not cohabit after the marriage.
3. The Petitioner testified before me on 28/6/2012. He told the court that he is a businessman. It was his evidence that the Respondent’s motive in getting married to him was to get a green card so as to enter the United States of America. The trick worked. The Respondent got a green card in 2009. She immediately left Kenya after the marriage for the USA. The Petitioner did not follow her there. He is explicit that he had no sexual inter course with het after the marriage and he confirmed that there was no connivance in the presentation of the Petition between him and Respondent and that he had not acquiesced the Respondent’s willful refusal to consummate the marriage.
4. The Petition was served on the Respondent who failed to enter appearance or file answer. It therefore proceeded to hearing as an undefended cause.
5. The Petitioner and the Respondent are Kenyan citizens and the Petitioner is domiciled in Kenya.
6. I am satisfied that the Respondent willfully and unreasonably refused to consummate the marriage which now only exists in name. I am also satisfied that the Petitioner has not acquiesced in the Respondent’s failure to consummate the marriage.
7. Accordingly, I pronounce a decree of nullity of the marriage between the Petitioner and the Respondent on the ground of the Respondent’s willful refusal to consummate the marriage.
8. In the first instance, a decree nisi shall issue forthwith and subject to the provisions of Section 15 of the Matrimonial Causes Act, Cap 152 of the Laws of Kenya, the decree nisi shall be made absolute after the expiry of three months after this pronouncement. It is so ordered.
9. There shall be no order as to costs.
Dated at Milimani Law Courts, Nairobi, on this 22nd day of November 2012.
GBM KARIUKI SC
JUDGE
COUNSEL APPEARING
Mr. Alex Masake advocate for the Petitioner
Mr. Kugwa, court clerk