[2017] KEHC 8728 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

DIVORCE CAUSE NO. 2 OF 2017

T P H …………………………………………. PETITIONER

VERSUS

N V S …...……………………............…….. RESPONDENT

JUDGMENT

1. The petitioner and the respondent who are American citizens celebrated their marriage on the 7th September, 2013 at Anacram, New York in United States of America. Pursuant to their union, the couple settled in Kenya due to work-related purposes as they were both photographers working with the particulars withheld branch office based in Nairobi.

2. The parties cohabited together as husband and wife in particulars withheld within Nairobi till they separated three years ago. This court shall assume jurisdiction on this matter on the basis of domicile of the parties to this petition.

3. By way of a petition dated 21st February, 2017, the petitioner sought to have the marriage between him and the respondent dissolved on grounds that the same has irretrievably broken down based on the particulars set out as hereunder:

a. That since December, 2013 when the respondent left the matrimonial home, the parties have been living separately and have not resumed cohabitation.

b. That repeated effort to salvage the marriage have been unsuccessful.

4. The respondent was served with a notice to enter appearance together with a copy of the petition as clearly evidenced by an affidavit of service sworn on the 2nd March, 2017 by one Riper Kafu a court process server. The respondent did not bother to enter appearance nor file any answer to petition nor cross petition.

5. Subsequently, the petitioner moved the court registrar vide summons dated 6th March, 2017 seeking to have the pleadings herein certified as being in order, properly filed and that the same be fixed for hearing as an undefended suit. The orders sought were granted on 9th March, 2017 and the matter fixed for formal proof.

6. During the hearing, the petitioner gave evidence in court basically adopting and reiterating averments contained in his petition. He requested the court to dissolve the marriage as the same has irretrievably broken down.

7. I have considered the petition herein and testimony by the petitioner. The suit is not challenged at all. Issues for determination are:

a. Was there a marriage contracted between the petitioner and respondent capable of dissolution in accordance with the Kenyan laws;

b. If the answer to (a) is in the affirmative, has the couple been living separately for a period of over two years prior to the filing of this suit;

c. Has the couple been married for a period of three years preceding the petition for separation or dissolution of their marriage.

d. Has the couple connived or colluded to file this suit;

e. Has the marriage broken down irretrievably;

f. Who is to blame for the breakdown of their marriage.

8. As stated above, the parties herein are both American citizens but residents (domiciled) of Kenya. Their marriage was celebrated in New York within the United States of America. Marriage Certificate particulars withheld was produced as evidence and or proof of the existence of the said marriage. Effectively, this is a foreign marriage that calls upon the application of Section 38 of the Kenyan Marriage Act 2014.

9. Section 38 provides as follows:

“A marriage celebrated in a foreign country otherwise than in accordance with Section 37 is valid if:

a. It was contracted in accordance with the law of that country and is consistent with the Laws of Kenya;

b. At the time of the marriage the parties had the capacity to marry vide the law of that country and is consistent with the Laws of Kenya;

c. Either of the parties is at the time of the marriagedomiciled in Kenya, both parties had capacity tomarry under this Act; and

d. If the registrar is satisfied that the parties have obtained certificate of no impediment if the law of that country requires the parties to an intended marriage to obtain such a certificate.

10. According to the Marriage Certificate, both parties were adults of sound mind and of opposite sex as at the time of marriage hence had the capacity to consent to their marriage just as is a requirement in Kenyan laws.

11. In accordance with Section 40 of the Marriage Act, a foreign marriage is recognized as a civil marriage so long as it is:-

a. Contracted in accordance with the laws of that country.

b. It is consistent with the provisions of this part and

c. The parties have the capacity to marry under this Act.

The part referred to in Section 40 (b) of the Marriage Act is part iv which deals with civil marriages to which the marriage herein falls.

12. I am therefore satisfied that the couple herein properly contracted marriage in accordance with their country’s laws consistent with Kenyan Laws.

13. From the evidence of the petitioner, the couple separated in 2013 when the respondent left their matrimonial home and despite every effort to reconcile the same has not borne any fruit. It is the petitioner’s contention that there has not been any element of collusion nor connivance in filing this suit.

14. Since there was no evidence to controvert that of the petitioner, I am left with his testimony alone. I am therefore convinced that the couple has been separated since 2013 a period exceeding three years being a prerequisite period before dissolution of any civil marriage in compliance with Section 66 (1) of the Marriage Act 2014.

15. A couple that has been staying apart for about four years now without any effort being made to reconcile is definitely disinterested in their marriage. No amount of force or pressure can compensate for lost love and togetherness. Marriage is a voluntary union disintegration of which is within the couples powers. Parties cannot be forced to stay together. This is obviously a marriage that has collapsed and irretrievably broken down. Each party should be released from the vows by dissolving their marriage.

16. Accordingly I am satisfied that the petitioner has proved his case on a balance of probability and judgment is thus entered as prayed with the following orders:

a. That marriage between the petitioner and respondent herein celebrated on the 9th July, 2013 be and is hereby dissolved.

b. That a decree nisi order do issue.

c. That the decree nisi order be declared absolute after three months.

d. That there shall be no order as to costs.

DATED AND DELIVERED IN OPEN COURT THIS 20TH DAY OF APRIL, 2017.

J. N. ONYIEGO

(JUDGE)

In the presence of:

………………………………. for petitioner

……………………………..... for respondent.