S K V v A M [2016] KEHC 1686 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

NULLITY CAUSE NO. 130 OF 2015

BETWEEN

SKV .....................PETITIONER

AND

AM ……………..RESPONDENT

JUDGEMENT

1. The Petitioner then a spinster and the Respondent then a bachelor, were married on 13th June, 2008 at the Registrar’s Office in Nairobi.  A certificate of marriage serial Number [Particulars Withheld] was issued to them in accordance with the Marriage Act (Cap 150 Laws of Kenya).  The couple did not cohabit as husband and wife immediately after the celebration of their marriage, owing to the want of appearance, or blessings by the Respondent’s parents who did not witness the marriage.

2. The Petitioner told the court that she remained in her parents’ home in Thika, until such time that the Respondent’s parents would bless the union under the Hindu traditional ceremony referred to as “Shadi”.  That the traditional “Shadi” wedding scheduled for the year 2009 did not take place and the marriage was therefore, not consummated, since the Respondent kept his parents in the dark regarding the marriage.

3. The Petition filed on 1st October, 2015 is premised on grounds of desertion of the Petitioner by the Respondent as particularised in the Petition.  The Petitioner asserts that she and the Respondent have never cohabited in a matrimonial home ever since celebrating the marriage on 13th June 2008.  That the Respondent subsequently remarried and has one issue of the marriage.

4. The Petitioner states that the Respondent filed a petition for annulment of marriage being High Court Nairobi Cause No. 60 of 2010.  The Petition was served on her but later on the Respondent withdrew the petition without the Petitioner’s knowledge.

5. On 22nd September, 2016 the Deputy Registrar certified that the matter was suitable to proceed for hearing as an undefended cause for one day in Nairobi.  The Respondent had been served with the Notice dated 6th May, 2016 to appear, but he did not appear or file an answer to the Petition.   At the hearing on 10th October, 2016, the Petitioner testified and reiterated what she had set out in the Petition.   The Respondent did not attend court to testify.

6. The Petitioner has asked the court to dissolve the marriage between her and the Respondent.  She confirms that this Petition has not been presented or prosecuted in collusion with the Respondent, nor has she connived or condoned the acts of desertion.

7. I have perused the grounds of the petition and the evidence of the Petitioner.  Under section 73(1)(a)of theMarriage Act, a party to a marriage may petition the court to annul the marriage on the ground that the marriage has not been consummated since its celebration. It is not denied that the parties have not cohabited since the celebration of their marriage on 13th June 2008 to date nor have they consummated it.  In the premise I find that the Petition has merit and allow it with orders as follows:

a. That the marriage celebrated between the Petitioner and Respondent at the Registrar’s office in Nairobi on 13th June 2008 is hereby annulled.

b. That Decree nisi annulling the said marriage is hereby issued to be made absolute thirty (30) days from the date of this judgment.

c.  There shall be no orders as to costs.

SIGNED DATEDandDELIVEREDin open court this 3rd day of November, 2016.

…………………………………….

L. A. ACHODE

JUDGE

In the presence of ………………………Advocate for the Petitioner

In the presence of ……………………Advocate for the Respondent