Annulment of Marriage in Kenya? Understand the legal procedure and process. This guide outlines the steps involved in annulment in Kenya. Expert legal advice available. Book Appointment Now!
Introduction
The word annulment is derived from the word null. The Black’s Law dictionary defines null to mean something that is ineffectual, nugatory, having no legal force or binding effect, unable, in law, to support the purpose for which it was intended. Simply put, it means amounting to nothing. As such, annulment is the judicial declaration of invalidity. Annulment of marriage means the conclusion of a marriage legally by declaring it null and void. It is usually granted where a marriage is either void or voidable.
Nullity of Prohibited Marriage Relationships
Section 10 of the Marriage Act 2014 provides on prohibited marriage relationships. Accordingly, a person is said to be in prohibited marriage relationship where they marry;
- their grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew;
- the grandparent, parent, child or grandchild of their spouse or former spouse
- a person they have adopted or by whom they have been adopted; or
- any other person where such marriages are prohibited under customary law.
Generally, for purposes of Section 10 of the Marriage Act 2014, a relationship of the half-blood is a bar to marriage save for Muslims who can marry their cousins. It is well settled law that prohibited marriage relationships are a nullity as was the case in In real Estate of Murgong Arap Kimenja alias Kimurgong Arap Menjo (Deceased) [2024] KEHC 5899 (KLR) where the Court was of the opinion that marriage relationships falling within the purview of prohibited marriages are null and void ab initio.
When is a marriage Void and when is it Voidable?
A void marriage is a union that has never existed legally as a marriage. Accordingly, void marriages are null ab initio. Section 11 of the Marriage Act 2014 enumerates on the grounds rendering a marriage void.
On the other hand, voidable Marriage is a union that stands valid and binding until necessary steps are taken to void it. The union changes when annulled via a Court decree. Section 12 of the Marriage Act 2014 provides on voidable marriages.
What are the Grounds of Annulment of a Marriage in Kenya?
Sections 73 to 75 of the Marriage Act 2014 speak to annulment of marriage. The grounds of annulment are stipulated under Section 73 (1) which reads as follows;
“A party to a marriage may petition the court to annul the marriage on the ground that—
(a)the marriage has not been consummated since its celebration;
(b)at the time of the marriage and without the knowledge of either party, the parties were in a prohibited relationship;
(c)in the case of a monogamous marriage, at the time of the marriage one of the parties was married to another person;
(d)the petitioner’s consent was not freely given;
(e)a party to the marriage was absent at the time of the celebration of the marriage;
(f)at the time of the marriage and without the knowledge of the husband, the wife is pregnant and that the husband is not responsible for the pregnancy; or
(g)at the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity.”[3]
It worth noting that grounds of annulment provided under Section 73(1)(a)(b) & (c) are also grounds which render marriages void under Section 11 of the same Act. Further, grounds of annulment provided under Section 73(1) (a) & (b) are also reiterated as grounds which render a marriage voidable under Section 12 of the Marriage Act. All in all, this shows the close proximity between annulment of marriage, prohibited marriage relationships, void marriages as well as voidable marriages.
The Procedure and effect of Annulment of Marriage in Kenya
As per section 73(2) (a) of the Marriage Act 2014, a marriage is annulled through a petition made within one year of the celebration of the marriage. However, by words of Justice Eko Ogola in JKM v MAC [2023] KEHC 3056 (KLR), “…it is clear that grant of annulment is not pegged on the petition being made within the first year… a party may apply for annulment when he or she finds out facts amounting to grounds for annulment that he or she was not aware of at the time of entering into the marriage. This section covers those people who do not find out the grounds for annulment within one year of marriage.”
The petition ought to be presented by one of the parties in the marriage. A position that finds solace in Section 74(1) & Section 73(1) of the Marriage Act 2014. When a decree absolute of the Court issues annulling a union, it renders parties to the union to never have been married.
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