[2014] KEHC 6008 (KLR)
The court found that the Petitioner had proved, on a balance of probabilities, that the marriage had not been consummated and that the parties had not lived together as husband and wife since the celebration of the marriage. The evidence was uncontroverted as the Respondent did not participate in the proceedings....
Source-derived case information.
- Citation
- [2014] KEHC 6008 (KLR)
- Parties
- Petitioner: N K C; Respondent: M N K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 59 of 2013
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved
- Judges
- LK Kimaru
- Legal Topics
- Marriage Nullity, Non Consummation, Conjugal Rights, Mental Health in Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N K C
Petitioner
M N K
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and Respondent should be declared a nullity due to non-consummation.
- 2 Whether the Respondent's denial of conjugal rights constitutes sufficient ground for dissolution of marriage.
- 3 Whether the Respondent's mental health condition prior to marriage affects the validity of the marriage.
Ratio Decidendi
The court found that the Petitioner had proved, on a balance of probabilities, that the marriage had not been consummated and that the parties had not lived together as husband and wife since the celebration of the marriage. The evidence was uncontroverted as the Respondent did not participate in the proceedings. The court held that non-consummation and denial of conjugal rights, coupled with the Respondent's mental health issues, were sufficient grounds to declare the marriage a nullity and dissolve it.
Court Disposition
petition allowed; marriage dissolved
Orders
- The marriage celebrated on 8th February 2011 at the Registrar’s Office in Nairobi between the Petitioner and the Respondent is hereby dissolved.
- Decree nisi dissolving the said marriage is hereby issued.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 59 OF 2013
N K C…………....…….……......……………………PETITIONER
VERSUS
M N K………….….…..................…………………RESPONDENT
J U D G M E N T
The Petitioner and the Respondent were on 8th February 2011 married at the Registrar’s Office in Nairobi. The marriage was celebrated under the Marriage Act. The Petitioner and the Respondent were blessed with one child born prior to the informal marriage. According to the Petitioner, since the celebration of the said marriage, the marriage has not been consummated. The Petitioner averred that he has not lived with the Respondent since the celebration of the marriage. He further accused the Respondent of denying him conjugal rights. The Petitioner complained that the Respondent suffered from a mental disease prior to the marriage. In the premises therefore, the Petitioner prays that the marriage be nullified.
The Respondent was served with a copy of the petition for divorce together with a notice requiring her to enter appearance. She did not enter appearance. Neither did she file an answer to the petition. The Deputy Registrar of this court issued a certificate certifying that this was a suitable divorce cause to be disposed of as an undefended cause. During the hearing of the cause, this court heard oral evidence adduced by the Petitioner. He essentially reiterated the contents of his petition for divorce. He told the court that the marriage was not consummated because he traveled to the United States of America to bury his mother immediately after the celebration of the marriage. He testified that he returned in July, 2011 but that the Respondent has since denied him conjugal rights. He told the court that the Respondent had developed a mental problem and had previously threatened to harm him. It is for these reasons that the Petitioner urged the court to grant his petition for divorce. This court has carefully considered the grounds put forward by the Petitioner in support of his petition for divorce on the ground of nullity. This court holds that the Petitioner did indeed prove to the required standard of proof on a balance of probabilities that indeed his marriage to the Respondent should be declared a nullity and be dissolved by reason of non- consummation of the marriage. The Petitioner's evidence is uncontroverted. From the evidence adduced, it was clear that the Petitioner and the Respondent have not related as husband and wife since the celebration of the marriage.
In the premises therefore, the marriage celebrated on 8th February 2011 at the Registrar’s Office in Nairobi between the Petitioner and the Respondent is hereby dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute thirty (30) days of the date of delivery this judgment. There shall be no orders as to costs.
DATED AT NAIROBI THIS 13TH DAY OF MARCH, 2014
L. KIMARU
JUDGE