A.N.K.S v P.S [2011] KEHC 2508 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MATRIMONIAL CAUSE NO. 4 OF 2009

A.N.K.S:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

=VERSUS=

P.S ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

JUDGMENT

A.N.K.S., the Petitioner, married P.S., the respondent, on 16th July, 2008 at the Registrar’s Office Nairobi under the Marriage Act (Cap 150 Laws of Kenya). After their marriage, they lived together in Nairobi, Kenya and at […] Middlesex 3 HA 8 RR in the United Kingdom. They also made visits to India and the United States.

In his petition lodged on 7th April, 2009, the petitioner pleaded that for the entire period of their marriage, he was unable to consummate the marriage due to a health condition of which he was unaware at the time of their marriage. He further pleaded that the said health condition, which was disabling him from consummating the marriage, is permanent. In the premises, he sought a decree of nullity.

When the respondent was served with the petition, she filed no answer with the result that when the same came up for hearing before me on 16th May, 2011, it proceeded ex-parte. In his oral testimony in court, the petitioner stated, in the main, as follows: He married the respondent on [...], 2008, which marriage was registered at the Registrar’s Office in Nairobi. He produced a marriage certificate to confirm the same. They stayed together in Nairobi Kenya after the marriage. Shortly afterward, on 19th July, 2008, the respondent travelled to the United Kingdom where she was joined by the petitioner two weeks later. On 13th September, 2008, they visited the United States of America upto 28th of the same month when they returned to the United Kingdom. On 13th October, 2008, they visited India, but the respondent left him there rejoining him on 10th December 2008. They eventually returned to the United Kingdom where they stayed upto 30th January, 2009. The Petitioner then returned to Kenya. Throughout the entire period, the petitioner was not able to consummate the marriage despite efforts to do so. He produced a Medical Report (Ex. 2) prepared by Dr. V.V.L.of [….] Hospital which report indicates that the petitioner had previously had a hole in his heart. He also had a growth in the right upper lobe of his lung which had caused the removal of the right upper lobe in the year 2000. He also had severe Rheumatoid Arthritis. In the doctor’s opinion, the petitioner’s condition and the drugs for that condition would have undesired effect on his sexual ability.

The petitioner concluded that he has not lived with the respondent since 31st January, 2009 and their marriage is null and void since he has not consummated the same.

Having considered the evidence adduced before me, which evidence was not contradicted, I am satisfied that petitioner’s marriage to the respondent was never consummated because of his medical condition. Accordingly, I hereby declare the said marriage null and void and pronounce a decree of nullity of the marriage between the petitioner and the respondent. Decree nisi shall issue forthwith and the same be made absolute after one month.

Each party shall bear his/her own costs.

Orders accordingly.

DATED AND DELIVERED AT ELDORET THIS 27TH DAY OF JUNE, 2011.

F. AZANGALALA

JUDGE

Read in the presence of:-

M/s Khayo holding brief for Mr. Nyairo & Co. Advocates for the Petitioner.

F. AZANGALALA

JUDGE.

27/01/2011.