H M R S v G S R [2014] KEHC 3882 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 153 OF 2013

H M R S….......……………………………………..PETITIONER

VERSUS

G S R………….….….…..……………………………………..RESPONDENT

J U D G M E N T

The Petitioner and the Respondent on 23rd February 2013 were married at the Wangapale Road in Parklands, Nairobi. The marriage was solemnized under the Marriage Act. 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. It was for this sole reason that the Petitioner was asking the court to nullify the marriage.

The Respondent was served with the notice of appearance together with a copy of the petition for divorce. He did not enter appearance.  Neither did he file any papers in answer to the petition for divorce. The Deputy Registrar of this court issued a certificate certifying this cause as a suitable one to be disposed of by the court as an undefended divorce cause. At the hearing of the petition, this court heard oral evidence adduced by the Petitioner. The Petitioner reiterated the contents of her Petition for divorce. She told the court that the marriage was not consummated because the Respondent had a physical problem. She testified that they attempted counseling but the Respondent was not interested in pursuing the same. She stated that they have been separated since April 2013. It is for this reason that the Petitioner urged the court to declare the marriage a nullity.

This court has carefully considered the grounds put forward by the Petitioner in support of her petition for divorce on the ground of nullity. This court holds that the Petitioner did prove to the required standard of proof on a balance of probability that indeed her marriage to the Respondent should be declared a nullity and be dissolved by reason of willful refusal by the Respondent to consummate the marriage. From the evidence adduced, it was clear that the Respondent has no intention of attempting counseling with a view to salvaging the marriage.

In the premises therefore, the marriage celebrated between the Petitioner and the Respondent on 23rd February 2013 at the Wangapale Road in Parklands, Nairobi is hereby dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute thirty (30) from the date of this judgment.  There shall be no orders as to costs.

DATED AT NAIROBI THIS 7TH DAY OF JULY, 2014

L. KIMARU

JUDGE