[2015] KEHC 5315 (KLR)
The court found that the marriage between the petitioner and respondent was never consummated and the parties never cohabited since the celebration of the marriage. The respondent did not contest the petition or provide any justification for his conduct. The evidence established that the marriage was stillborn for...
Source-derived case information.
- Citation
- [2015] KEHC 5315 (KLR)
- Parties
- Petitioner: M H N; Respondent: N S S
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 248 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- marriage annulled; decree nisi issued; no order as to costs
- Judges
- LA Achode
- Legal Topics
- Marriage Annulment, Non Consummation, Desertion, Cruelty, Matrimonial Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M H N
Petitioner
N S S
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be annulled for lack of consummation and cohabitation.
- 2 Whether the grounds of cruelty and desertion have been established to warrant dissolution of the marriage.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent was never consummated and the parties never cohabited since the celebration of the marriage. The respondent did not contest the petition or provide any justification for his conduct. The evidence established that the marriage was stillborn for lack of consummation and cohabitation, and the grounds of cruelty and desertion were sufficiently demonstrated. The court exercised its inherent jurisdiction to annul the marriage and issued a decree nisi to be made absolute after thirty days.
Court Disposition
marriage annulled; decree nisi issued; no order as to costs
Orders
- The marriage celebrated between the petitioner and respondent at the Registrar’s office in Nairobi on 29th October 2010 is hereby annulled.
- A decree nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this judgment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 248 OF 2013
BETWEEN
M H N ……………..………..........……………PETITIONER
AND
N S S….. …………………….……………….RESPONDENT
JUDGEMENT
On 29th October, 2010, the Petitioner, then a Spinster known as M H N was lawfully married to the Respondent N S M S then a bachelor and a certificate Serial No. [particulars withheld] issued to them in accordance with the Marriage Act Cap 150 Laws of Kenya. The marriage was celebrated at the Registrar’s Office Nairobi. They have no issue of the marriage.
The Petition in this matter was filed in court on 26th November 2013. The Petitioner seeks dissolution of the marriage on grounds of cruelty, desertion, neglect and adultery as particularised therein.
The particulars of cruelty are said to have been directed at the Petitioner by the Respondent. The Petitioner avers that since the celebration of the marriage, the Respondent has completely refused to allow her to move in with him, or to consummate the marriage. That the Respondent is consistently engaged in drug abuse and on several occasions has threatened to visit personal violence on the Petitioner and embarrassed her in front of her family.
On desertion the Petitioner states that the Respondent, without any justifiable reason deserted her immediately after the celebration of the marriage and completely refused to allow the Petitioner to move in with him. That they have never cohabited since their marriage and the Respondent has denied the Petitioner the enjoyment of conjugal rights causing her to suffer psychologically. The Petitioner also states that the Respondent does not engage her in any conversation as would be reasonably expected of a couple in a marriage, and that he has never provided for the emotional and material needs of the Petitioner.
The particulars of adultery are that the Respondent has never made any attempt to consummate the marriage, despite repeated entreaties and pleas from the Petitioner. That he has also maintained a very secret life from the Petitioner. This therefore, leads the Petitioner to conclude that his emotional satisfaction and companionship are being catered for elsewhere.
The Petitioner confirms that this Petition has not been presented or prosecuted in collision with the Respondent, nor has she connived or condoned the acts of cruelty or desertion complained of. She has also certified that there have been no previous proceedings filed regarding the marriage. She further states that efforts at reconciliation through family members and friends have borne no fruit.
On 22nd May, 2014 the Deputy Registrar certified that the matter was suitable to proceed for hearing as an undefended cause for one day in Nairobi. The Respondent had been served with the petition and notice to appear on 17th December 2013 but he did not appear nor did he file an answer to the Petition or a cross-Petition thereto. The Petitioner testified on 16th April 2015 and basically confirmed what she had set out in the Petition but abandon the grounds of adultery.
From the foregoing it is evident that the marriage celebrated between the parties herein on 29th October, 2010, was still born for lack of consummation and cohabitation. It is not denied that in the five years that the couple has been married they have never consummated their marriage nor cohabited. In the circumstance the court in the exercise of its inherent jurisdiction makes the following orders:
That the marriage celebrated between the Petitioner and Respondent at the Registrar’s office in Nairobi on 29th October 2010 is hereby annulled.
That Decree nisi dissolving the said marriage is hereby issued to be made absolute thirty (30) days from the date of this judgment.
There shall be no orders as to costs.
SIGNED DATEDandDELIVEREDin open court this 30th day of April 2015.
…………………………………….
L. A. ACHODE
JUDGE