[2013] KEHC 1734 (KLR)
The court found that the Petitioner had proved, on a balance of probabilities, that the marriage had not been consummated due to the Respondent's persistent refusal, with no medical or lawful excuse. The court accepted the Petitioner's evidence, which was unchallenged by the Respondent, and held that the...
Source-derived case information.
- Citation
- [2013] KEHC 1734 (KLR)
- Parties
- Petitioner: S K; Respondent: M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 110 of 2012
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage declared a nullity and dissolved
- Judges
- LK Kimaru, DN Musyoka
- Legal Topics
- Marriage Nullity, Non Consummation, Divorce Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S K
Petitioner
M M
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the Petitioner and the Respondent should be declared a nullity due to non-consummation.
- 2 Whether the Petitioner has proved the ground of non-consummation to the required standard of proof.
Ratio Decidendi
The court found that the Petitioner had proved, on a balance of probabilities, that the marriage had not been consummated due to the Respondent's persistent refusal, with no medical or lawful excuse. The court accepted the Petitioner's evidence, which was unchallenged by the Respondent, and held that the non-consummation constituted sufficient ground for nullity. Accordingly, the marriage was declared a nullity and dissolved, with a decree nisi issued to be made absolute within thirty days.
Court Disposition
petition allowed; marriage declared a nullity and dissolved
Orders
- The marriage celebrated between the Petitioner and the Respondent on 9th December 2001 is declared a nullity and dissolved.
- A decree nisi dissolving the said marriage is issued, to be made absolute within thirty (30) days of the date of judgment.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO.110 OF 2012
S K………………………..….…………….……......……………………………PETITIONER
VERSUS
M M……………………….….….……………..…………………………………RESPONDENT
J U D G M E N T
The Petitioner and the Respondent were married on 9th December 2001 at the Nairobi Shree Lohana Mahajan Mandal Hindu Temple. According to the Petitioner, since the celebration of the said marriage, the marriage has not been consummated. This led to the separation of the Petitioner and the Respondent. The Petitioner avers that although he sought counseling with the Respondent in the hope that the marital situation would change, the Respondent still persisted in her refusal to consummate the marriage. In the premises therefore, the Petitioner prays that the marriage be nullified. The Respondent was served with the petition for divorce. She entered appearance. However, she did not file any papers in answer to the petition.
At the hearing of the petition, this court heard oral evidence adduced by the Petitioner. The evidence was adduced in the presence of counsel for the Respondent. The Petitioner reiterated the contents of his petition for divorce. He told the court that the marriage was not consummated because of the Respondent’s refusal. He was emphatic that there was no medical reason for the lack of consummation. He testified that although he tried counseling, the marriage was still not consummated thus compelling him to petition this court to declare the marriage a nullity. 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. From the evidence adduced, it was clear that the Respondent had no intention of consummating the marriage even after the couple had attended counseling sessions.
In the premises therefore, the marriage celebrated between the Petitioner and the Respondent on 9th December 2001 at the Nairobi Shree Lohana Mahajan Mandal Hindu Temple is hereby declared a nullity and hence is dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute within thirty (30) days of the date of delivery of this judgment. There shall be no orders as to costs.
L. KIMARU
JUDGE
DATED, COUNTERSIGNED AND DELIVERED ON 20TH DAY OF JUNE 2013.
W. MUSYOKA
JUDGE