C B G v J L W [2017] KEHC 9412 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

NULLITY CAUSE NUMBER 166 OF 2013

CBG.......................................PETITIONER

VERSUS

JLW...................................RESPONDENT

J U D G M E N T

1. The Petitioner herein, CBG, who is also the cross petitioner for Nullity (in Divorce Cause No. 174 of 2013), filed an amended Petition dated 8th August 2013 (hereinafter referred to as “the Nullity cause”), Statement of CBG together with documents relied on dated 18th August 2016, Answer to Petition and Cross Petition dated 19th March 2016 in Divorce Cause No. 174 of 2013(hereinafter referred to as “the Nullity Cross Petition”) and the Witness Statement of CB filed in Divorce Cause No. 174 of 2013 on 14th September 2016 in support of the Nullity Cross Petition.

2. The Respondent, JLW filed Answer to Petition and also Cross Petitioned for divorce on grounds of cruelty, adultery and irreconcilable differences on 23rd August, 2013. She also filed a statement and Divorce Cause No.174 of 2013.  Pursuant to a Court Order of 21st July 2014, this cause was consolidated with Divorce Cause No. 174 of 2013 with directions that the nullity cause be heard first.

3. The grounds of the Nullity cause were that at the time of celebration of the marriage between the parties hereto, the Respondent’s marriage to a previous husband was still in force, having not been conclusively dissolved in law, while the Petitioner too was still married to another woman. Secondly, that the Petitioner’s consent to the marriage was obtained by fraud, by virtue of the false depositions that were made to the Registrar of Marriage, by the Respondent.

4. The Respondent denied the Petitioner’s averments and averred that the Petitioner was not only aware of her divorce from her former husband but was a major player in the divorce proceedings. That the only reason the Petitioner had applied for annulment was to enable him deprive her of the matrimonial property acquired through her sweat.  Further that the Petitioner did not tell her that he was married to someone else.

ANALYSIS AND DETERMINATION:

5. The Petitioner and the Respondent got married on 2nd June, 2010 at the Registrar’s office in Nairobi in the Republic of Kenya.  They were issued with a marriage certificate No. 1008 of 2010.  The marriage was monogamous in nature. Three years later the Petitioner moved the court for nullification of the marriage under Section 14 (d) and (e) of the Matrimonial Causes Act (repealed) as read with Section 35of the Marriage Act Cap 150 (repealed).  He argued that pursuant to the said repealed Sections, filing nullity proceedings on grounds relied on in this matter was not subject to a one year limitation period from the time of the marriage of the parties.

6. Mr. Okello Learned Counsel for the Petitioner contended that it would be an affront to justice to apply the current limitation period retrospectively to his detriment and that limitation had not been pleaded by the Respondent.  That whereas the instant proceedings were outside the one year limitation period provided under the Marriage Act, 2014, they were filed in consonance with the then applicable legal regime andSection 98(2) of the Marriage Act, 2014allows for continuity under the current regime in so far as it is practicable.

7. M/s. Ondeki learned Counsel submitted on the Respondent’s behalf that parties were bound by their pleadings.  She explained that previously the Applicable English Common Law, was the Matrimonial Causes Act 1973 which provided that a marriage had to have lasted for three years before divorce, or annulment could be applied for at the time of filing for annulment. It was replaced by Matrimonialand Family Proceedings Act 1984 which had reduced the period to one year.

8. Counsel urged that the Kenyan position under Section 73(2) of the Marriage Act, 2014 also provides a limitation period of one year from the date of the marriage. Section 98(2) of the same Act allows proceedings filed under the repealed Act to continue under the new Act and therefore, the one year limitation period applies to these proceedings.

9. The main issues for determination in the nullity proceedings are :

(i) whether at the time of the subject marriage, the Respondent was incompetent to marry by reason of a subsisting marriage;

(ii) whether at the time of  the subject marriage, the Petitioner was incompetent to marry by reason of a subsisting customary marriage;

(iii) whether the Petitioner’s consent to the marriage was obtained by fraud, by virtue of false depositions that were made to the Registrar of marriages.

10. On the first issue for determination the Petitioner averred that at the time of the subject marriage, the Respondent was incompetent to marry by reason of a subsisting marriage to one J.O.G.O.  That whereas the marriage between her and J.O.G.O. was conducted in Copenhagen Denmark, it was said to have been dissolved in Berlin Germany.

11. The Petitioner raised questions about the validity of the divorce decree issued by the German Courts and whether the previous marriage had been dissolved at all, by the time of contracting the subject marriage. He denied having been aware that the divorce proceedings between the Respondent and her former husband were ongoing and asserted that he became aware thereof after he had committed himself to the relationship.

12. In her evidence, the Respondent gave a detailed explanation of why that marriage was dissolved in Berlin, Germany and not in Copenhagen, Denmark where the parties got married.  She testified that J.O.G.O. is a German citizen, while she holds permanent residence in Germany and that is why their marriage was dissolved in Germany. This was confirmed in a legal opinion obtained by the Petitioner from a lawyer in Denmark, in which the lawyer explained that neither the Respondent nor her former husband met the requirements to obtain a divorce in Denmark.  That they could only do so if one was a Danish citizen, or a habitual resident according to Danish Administration of Justice Act.

13. The Respondent’s evidence was that the Petitioner played a big part in the divorce proceedings. She annexed emails to show that he was aware of the whole process of divorce, although the Petitioner made a feeble attempt to deny having sent these emails to the Respondent. The Respondent demonstrated that the translation of the divorce decree had been certified by the German Embassy and she produced the Original Divorce Decree for inspection in Court.

14. The onus lay on the Petitioner to prove all the allegations he raised concerning the Divorce Decree, by providing evidence in court to show that the said document ought not to be recognized and enforced by the court by virtue of it being inauthentic, not certified or a forgery.  I note from the proceedings that the Petitioner was served with a copy of the Divorce Decree, together with the translation on 23rd August 2013 pursuant to an order of Kimaru, J. He had more than three years after being served with the Decree to offer contrary evidence which he failed to do.

15. The Respondent and her former husband obtained on 29th July 2009, a Decree dissolving their marriage from the Berlin Family Court and she got married to the Petitioner a year later on 2nd June 2010.  It is clear that the Petitioner is being less than candid on this issue in view of all the evidence presented in Court.  After a careful consideration of the evidence on this issue I find that indeed the Petitioner was aware of the divorce proceedings before he married the Respondent. Further that the dissolution of the marriage between the Respondent and her former husband made on 29th July 2009 was valid under the law and therefore the Respondent’s previous marriage was not subsisting at the time that she married the Petitioner.

16. On the second issue the Petitioner relied on the gist of the particulars of fraud as pleaded in the Divorce cause that he was married to one C.M.O. a dentist, under Luo Customary Law. That they had cohabited as husband and wife between the years 2003-2005, and he did not inform the Respondent of such marriage during their courtship and subsequent marriage under civil law.  In essence the Petitioner herein argued that both parties admitted the fact of his incompetence to marry in their pleadings while in their evidence on oath it was not disputed that he was married under customary law.

17. M/s. Ondieki submitted that the Petitioner wished to have the marriage annulled on account of a fault attributable to the Respondent, yet vide his statement filed on 14th September, 2016, he admitted that both parties were incompetent to marry, by reason of subsisting marriages. Counsel argued that the marriage cannot be nullified on account of the Petitioner’s own incapacity to marry.  She asserted that the Petitioner was seeking an equitable relief and he should not benefit from his own wrong doing as “…He who comes to equity must come with clean hands...”

18. Counsel also argued that the Petitioner had admitted that he did not inform the Respondent of his prior marriage, while the Respondent testified that she learnt of the said marriage as she was preparing to defend herself in this case. Counsel cited the case of Clickner v Clickner 95 N.J Eq. 479, (1924)where it was stated that “a Petitioner seeking for divorce will be barred by any inequitable conduct towards his spouse or even towards the Court.”

19. It was surprising that the Petitioner, who successfully applied for and was categorical at the commencement of this trial that these proceedings should be confined to the Nullity cause, fell back on the Petitioner’s averments in the Divorce Petition.  It is noteworthy that C.M.O. the woman he was allegedly married to, was not enjoined in the Nullity Cause as a party and neither the Petitioner, nor the Respondent brought witnesses to Court to support the allegation that the Petitioner was in a customary law marriage.

20. This second issue revolves around African Customary Law and ought to be based on cogent evidence and not mere presupposition, inferences, speculations or assumptions. Black’s Law Dictionary Ninth Edition at page 443, defines Customary Law as law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws.

21. Makhandia J (as he then was), in the case of Nyariba Nyankomba -vs- Mary Bonareri Munge (2010) eKLR,in which a party sought refuge in customary law stated that:-

“Time and again it has been stated that in cases resting purely on customary law it is absolutely necessary that experts versed in the customs be summoned to testify so as to assist the court reach a fair verdict since the court itself is not well versed in those customs and traditions.  In the absence of such expert testimony, there can only be one conclusion, such claims remain unproved”

22. In the earlier case of Kimani v Gikanga [1965] EA 735 at pg 739 Duffus JA pronounced himself as follows on customary law:

“To summarise the position; this is a case between Africans and African customary law forms a part of the law of the land applicable to this case.  As a matter of necessity the customary law must be accurately and definitely established.  The Court has a wide discretion as to how this should be done but the onus to do so must be on the party who puts forward customary law.  This might be done by reference to a book or document reference and would include a judicial decision but in view, especially of the present apparent lack in Kenya of authoritative text books on the subject, or any relevant case law, this would in practice usually mean that the party propounding customary law would have to call evidence to prove that customary law, as would prove the relevant facts of his case.”

One of the Petitioner’s grounds for nullity having been founded on customary law, the onus was upon him to prove by adduction of evidence, that such custom(s) exist(s) and that the prior relationship he has fallen back on, had satisfied the requirements of the said custom(s) to qualify as a marriage.

23. This does not mean that the affidavit evidence filed by the parties herein is not good or proper evidence. It was however not sufficient for the trial court to have a proper appreciation of the customary law relating to the specific marriage.  There was need for expert evidence to be called to that effect, for the court to effectively interrogate the issues of customary law marriage and determine that the relationship amounts to a legally constituted Luo Customary marriage, or that there was dissolution of the said marriage between the parties thereto. The determination of these two issues is too complex and varied from community to community be left to affidavit evidence.

24. The Petitioner’s evidence of a customary marriage is based on the averments made by the Respondent in her Divorce Petition under ‘particulars of fraud’.This only amounts to allegations by both parties there being no evidence adduced by either side as to the conduct of the said customary marriage. The affidavits and submissions filed in court do not disclose that any ceremonies such as “Ayie” asking for the girl’s hand “nyombo” (dowry negotiations), took place between the Petitioner’s family and that of the said woman, to signify that a Luo Customary marriage had been contracted. In this case the Respondent had declared that she was a Spinster.  It is instructive that in the testimony of the Registrar the Petitioner too described himself as a bachelor during the marriage ceremony.

25. The Petitioner wishes to have the marriage annulled on account of the Respondent’s fault, but that is not the case.  I have already established elsewhere in this judgment that the Respondent did not have a subsisting marriage at the time of her marriage to the Petitioner, on account of having obtained a decree of dissolution of her previous marriage a year before getting married to the Petitioner. The Petitioner on the other hand has not proved the existence of the customary marriage he sought to rely on.  In any case it would be mischievous of him to expect orders from the Court, by virtue of having committed to a marriage knowing well that he did not have capacity to contract it.  It is instructive that in the testimony of the Registrar the Petitioner too described himself as a bachelor during the marriage ceremony.

26. On the third issue the basis of the Petitioner’s allegations that his consent to marry the Respondent, was obtained by fraud and false depositions on the part of the Respondent, was that the Respondent termed herself as a “Spinster” in the marriage certificate.  It is noteworthy that Kimaru, J on 7th November 2013 ordered counsels for the Petitioner to supply the Respondent with documents supporting the allegations of fraud as pleaded in the amended petition within 14 days, to enable the Respondent defend herself adequately.  The Petitioner has not complied with this order to date.

27. The Respondent was an unmarried woman at the time of her marriage to the Petitioner as has been found elsewhere in this judgment. The omission by the Respondent at the Registrar of marriages, to indicate her status as divorced did not go to the root of the marriage since both parties were aware of her divorced status. The Petitioner’s allegations of fraud and false depositions by the Respondent to the Registrar of Marriages are therefore misguided and misconceived.

28. The Registrar of Marriages testified on the Petitioner’s behalf but did not avail the affidavits adverted to which are said to have been sworn at the time of the marriage. He explained that the term ‘Spinster’ referred to an unmarried woman who was past the legal age of marriage. That if one was married before they should disclose the status as divorced or widowed, evidenced by a divorce decree or death certificate.

29. The Registrar of Marriages testified that the information contained in the Marriage Certificate was extracted from the declaration given by the parties.  In this case the Respondent had declared that she was a Spinster while the Petitioner too described himself as a bachelor during the marriage ceremony.

30. In the case relied on by the Respondent, Brown vs. Scott Court of Appeals, Maryland 140 MD 258 (1922), the celebrated case of Moss vs Moss (1897) Prob. Div. 268 was cited and it was determined that the only fraud that will permit annulment is one which procures the appearance of consent without its actuality. The misrepresentation must go to the very essence of marriage.

31. In the case before me I find no evidence of the alleged fraud or false depositions by the Respondent.  Despite what the Petitioner would like this court to believe, there is no evidence that the Respondent forced, or inveigled him into this marriage by any misrepresentation or at all.  From the evidence it was he who stood to gain by this marriage more than the Respondent.

32. Lastly on the issue of annulment, although the parties did not plead and neither is limitation an issue for determination herein, Section 73 to 75 of the Marriage Act 2014 lay down grounds on which a decree of nullity of marriage may be made –Section 73 provides that,

“(1) A party to a marriage may petition the court to annul the marriage on the ground that—

(c) In the case of a monogamous marriage, at the time of the marriage, one of the parties was married to another person.”

(2)  The court shall only grant a decree of annulment if —

(a) The petition is made within one year of the celebration of the marriage;

(b) at the date of the marriage and regarding subsections (1)(b) and (c), the petitioner was ignorant of the facts alleged in the petition;”(emphasis mine)

The Petitioner is therefore barred by limitation of time from filing for annulment after 3 years.

33. Lastly, the Respondent on her part seeks to have the marriage dissolved on grounds of irreconcilable differences, cruelty and adultery, in the cross-Petition in the nullity cause.  These two petitions are joined at the hip and are inseparable despite the Petitioner’s spirited attempts to separate them. I have steered clear of Divorce Cause No. 174 of 2013 as prayed by the Petitioner and allowed by the court on 21st July 2014.  In considering this Nullity cause however, I must of necessity consider the Answer to petition and the Cross Petition therein.

34. In the Cross-Petition the grounds of cruelty, adultery and irreconcilable differences have been pleaded.  These are all questions of fact which require to be assessed based on the evidence provided by the parties.  The standard of proof in establishing the above grounds of divorce is on a preponderance of probability, or in other words, on a balance of probabilities.  See the case of Alexander Kamweru v Anne Wanjiru Kamweru [2000] eKLR,  in which the Court of Appeal stated as follows:

“Certainly cruelty or desertion may be proved by a preponderance of probability, that is to say that the Court ought to be satisfied as to feel sure that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the case may be) established”.

35. The Respondent’s allegation of cruelty requires proof to convince the court that the factual circumstances would suggest that the Petitioner’s conduct caused, or threatened to cause actual danger to the Petitioner’s life or limb.  See the case of D M v T M [2008] 1 KLR 5  in which Chesoni J (as he then was) stated that:

“To establish cruelty the complainant must show to the satisfaction of the court: –

i. misconduct of a grave and weighty nature

ii. real injury to the complainants health and reasonable apprehension of such injury

iii. that the injury was caused by misconduct on the part of the Respondent, and

iv. that on the whole the evidence of the conduct amounted to cruelty in the ordinary sense of that word”.

36. The Respondent in her evidence in chief stated that the Petitioner had been extremely cruel to her in many instances.  She singled out the occasion of her return from Italy with her aged father, to her matrimonial home, to organize for the burial of her mother who had died while visiting her in Rome, Italy.

37. The Respondent testified that a mild disagreement arose between her and the Petitioner and when her father tried to intervene the Petitioner became unbelievably rude, forcing her and her father to leave her matrimonial home and stay at Parklands Club, as they awaited the arrival of her mother’s remains. The Petitioner did not dispute this but blamed the Respondent for the occurrence of that fateful night.  He admitted to having driven the Respondent and her father to stay at the Parklands Club.

38. The Court takes cognizance of the case relied on by Counsel for the Respondent M vs. M (2002) 2 KLR 511 by Nambuye J (as she then was) in which she held that:

“Divorce on grounds of cruelty will be granted upon proof that the acts of cruelty were not mere trivialities but were such that were likely to cause harm not only to the physical health but also mental health.”

39. In the end it does not matter who was to blame for the storms in this marriage.  Both parties however admitted that the marriage between them has irretrievably broken down due to irreconcilable differences and there was little hope for reconciliation.

40. Under Section 66(2) of the Marriage Act 2014, the irretrievable breakdown of a marriage is a ground for divorce. Section 66(6)elaborates that a marriage will be found to have irretrievably broken down if, inter alia:

(a) A spouse commits adultery,

(b) A spouse is cruel to the other spouse or to any child of the marriage;

(c) A spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;

(d) The spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has;

(e) A spouse has deserted the other spouse or at least three years immediately preceding the date of presentation of the petition; (emphasis mine)

41. The Respondent produced a P3 form to support her assertion that the cruelty visited upon her included physical assault by the Petitioner.  The parties have been living apart for a period of time exceeding three (3) years.  In the intervening period they have been pitted against each other in a bitter legal contest characterized by numerous applications.

42. For the foregoing reasons I find that the Petitioner has not provided sufficient evidence to warrant the issuance of orders of nullification of the marriage between him and the Respondent.  The nullity petition is therefore dismissed.  On the other hand there is sufficient evidence that the said marriage has irretrievably broken down, due to irreconcilable differences between them and there is little hope for reconciliation.

43. In the premise Judgment is entered in the Nullity cause in favour of the Petitioner in the Cross-Petition in the following terms:

1) The marriage solemnized between the Petitioner and the Respondent on 2nd July 2010 is found to have irretrievably broken down for reasons of irreconcilable differences and is hereby dissolved.

2) Decree nisi dissolving the marriage is hereby issued. It shall be made absolute thirty (30) days from the date of this judgment.

3) Each party shall bear their own costs.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 5TH day of October, 2017.

……………………………….

L. A. ACHODE

JUDGE