[2019] KEHC 10943 (KLR)
The court found that the petitioner did not freely enter into the marriage, as the respondent's primary motive was to obtain a work permit in Kenya. The marriage was never consummated, as the respondent left immediately after the ceremony and was subsequently deported. Despite the petition being filed after one year...
Source-derived case information.
- Citation
- [2019] KEHC 10943 (KLR)
- Parties
- Applicant: PMN; Respondent: KCE
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 82 of 2015
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage nullified
- Legal Topics
- Marriage Annulment, Non Consummation, Fraudulent Marriage, Deportation, Consent in Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PMN
Applicant
KCE
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent should be annulled on grounds of non-consummation and lack of free consent.
- 2 Whether the petition is valid despite being filed after one year from the celebration of the marriage.
Ratio Decidendi
The court found that the petitioner did not freely enter into the marriage, as the respondent's primary motive was to obtain a work permit in Kenya. The marriage was never consummated, as the respondent left immediately after the ceremony and was subsequently deported. Despite the petition being filed after one year from the celebration of the marriage, the court exercised discretion to allow the petition, given the clear evidence of non-consummation and lack of genuine consent. The marriage was therefore nullified under Section 73 of the Marriage Act, 2014.
Court Disposition
petition allowed; marriage nullified
Orders
- The marriage between the petitioner and the respondent is hereby nullified.
- A decree absolute to issue accordingly.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
DIVORCE CAUSE N0. 82 OF 2015
IN THE MATTER OF THE MARRIAGE ACT 2014 OF THE LAWS OF KENYA
PM..........................................................PETITIONER
VERSUS
CE.........................................................RESPONDENT
JUDGMENT
1. The Petitioner herein PMN petitioned this Court for orders that the marriage between her and the Respondent KCE be nullified and/or dissolved on the grounds of cruelty and desertion.
2. The Petitioner and Respondent got married on 21st June 2013 at the Civil Registry in Nairobi.
3. The Marriage was never consummated as the Respondent left immediately after the Celebration of the marriage.
4. The Respondent was subsequently deported by the Government of Kenya and the Petitioner does not know his whereabouts.
5. The Respondent is not a Kenyan Citizen and he was unlawfully living in Kenya at the time he fraudulently entered into the marriage with the Petitioner.
6. The petition proceeded as an undefended suit. The Petitioner who testified as Pw 1 said the Respondent was a friend to her friend when she first met him.
7. She said he convinced her to enter into the marriage to enable him get work permit in Kenya. He left immediately after the celebration of the marriage and she later learnt he had been repatriated.
8. Section 73 (1) states as follows;
“ A Party to a marriage may petition the Court to annul the Marriage on the ground that:-
(a) the Marriage has not been consummated since its celebration.
(b) thePetitioner’s Consent was not freely given.
9. I find that in the current case, the Petitioner did not freely enter into the marriage with the Respondent as the said wanted to use the marriage to obtain a work permit.
10. The Petitioner also said the Marriage was not consummated as the Respondent left immediately after the marriage was celebrated and she has never seen him since that time.
11. Although the Petition was not filed within one year of the Celebration of the marriage as required by Section 73 (2) (a) of the Marriage Act, I find that the marriage has not been consummated since it was celebrated and since this Petition was filed in Court.
12. I accordingly allow the Petition and order as follows;
(a) THAT the marriage between the Petitioner and the Respondentbe and is hereby nullified.
(b) THAT a decree absolute to issue accordingly.
(c) THAT each party to bear its own costs of this suit.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 25THDAY OF JANUARY, 2019
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI