[2014] KEHC 4676 (KLR)
The court found that the petitioner had established that the marriage was never consummated, as both parties agreed to postpone consummation until after a religious ceremony, which never took place due to the respondent's failure to return to Kenya. The respondent was properly served but did not contest the petition...
Source-derived case information.
- Citation
- [2014] KEHC 4676 (KLR)
- Parties
- Applicant: M M H M; Respondent: M J
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Annulment Cause 61 of 2012
- Procedural Posture
- Annulment Cause / Judgment
- Outcome
- petition allowed; marriage annulled
- Judges
- JV Juma
- Legal Topics
- Marriage Annulment, Non Consummation, Civil Marriage, Islamic Marriage, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M M H M
Applicant
M J
Respondent
Procedural Posture
Annulment Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be annulled on the ground of non-consummation.
- 2 Whether proper service of the petition was effected on the respondent.
Ratio Decidendi
The court found that the petitioner had established that the marriage was never consummated, as both parties agreed to postpone consummation until after a religious ceremony, which never took place due to the respondent's failure to return to Kenya. The respondent was properly served but did not contest the petition or deny the claim of non-consummation. The court accepted the petitioner's evidence and explanation as credible and consistent with the requirements of Section 73(1)(a) of the Marriage Act. Therefore, the court held that non-consummation constituted a valid ground for annulment and granted the order as prayed.
Court Disposition
petition allowed; marriage annulled
Orders
- The marriage between the petitioner and respondent is annulled.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ANNULMENT CAUSE NO. 61 OF 2012
M M H M……………..….………PETITIONER
VERSUS
M J…………………….………………....…RESPONDENT
JUDGMENT
The petitioner M M H M filed in court this petition dated 18th December, 2012 seeking the annulment of her marriage to the respondent M J. The respondent a British national who lives in the United Kingdom was properly served with notice of the petition as well as a summons to enter appearance by way of substituted service by DHL courier. The respondent made no reply to the summons – he did not enter appearance neither did he file any reply to the petition. The matter proceeded as an undefended cause.
The petitioner told the court that she entered into an arranged marriage with the respondent who was a British citizen. The marriage was solemnized on 17th October, 2011 at the office of the Registrar in Mombasa. The petitioner has produced as evidence of the marriage the certificate serial number [Particulars withheld]Pexb 1. Following the civil marriage the parties agreed that they would enter into a formal Islamic union before they consummated the marriage. As such the petitioner returned to her parents’ home in old town after the civil ceremony whilst the respondent put up in a hotel. A few days after the civil ceremony, the respondent returned to the United Kingdom. The agreement was that he was to return to Kenya to participate in the religious Islamic ceremony before the couple would begin to cohabit as man and wife. As it transpired the respondent never returned to Kenya as agreed. The petitioner avers that the marriage remains unconsummated to date and hence her petition seeking an annulment.
Section 73(1) (a) of the new Marriage Act No. 4 of 2014 provides that
“A party to a marriage may petition the court to annul the marriage on the ground that –
The marriage has not been consummated since its celebration.
…………………….”
This is precisely what the petitioner here is alleging that since the time of celebration of her marriage to the respondent in October, 2011 the marriage has never been consummated. As stated earlier the respondent was properly served with the petition but opted to make no reply. More specifically the respondent has not denied or challenged the petitioner’s claim that the marriage was never consummated. The petitioner explained that despite having undergone a civil ceremony in line with Islamic religious principles, the couple decided to postpone the consummation of their marriage until a religious ceremony had been performed. This is not far-fetched or unbelievable. As a court I have no reason to doubt that such an agreement was actually reached. A few days after the marriage, the respondent returned to the United Kingdom. Although he was to come back to Kenya for the religious ceremony he failed to do so. As such no religious ceremony was ever performed and the marriage remained unconsummated. This is a valid ground for annulment. I am satisfied that the petitioner has established valid grounds and I do hereby grant the order of annulment as prayed. No order on costs.
Dated and delivered in Mombasa this 3rd day of June, 2014
M. ODERO
JUDGE
In the presence of:
Mr. Mohamed h/b Mr. Hamza for Applicant
Court Clerk Mutisya