Wakilii

A v B (C.A. 9-1932.)

East African Court of Appeal · [1932] EACA 5 · 1932 Appeal Allowed — Nullity Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya dismissing petition for declaration of nullity of marriage
Decision
Marriage declared null and void

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and granted a decree of nullity. Where a wife persistently refuses to consummate the marriage over a reasonable period and also refuses to submit to medical inspection, the court may draw a legal presumption of impotence or incapacity to consummate, notwithstanding a relatively short period of actual cohabitation. The fourteen-day cohabitation period, combined with seventeen months of steadfast refusal and rejection of opportunities to return, was sufficient to invoke the inference of incapacity.

Outcome

Marriage declared null and void

Facts

The parties married on 11 August 1930 at Mombasa. They cohabited for approximately fourteen days, staying at hotels in Mombasa and Nairobi, at a friend's house in Timau for ten days, and briefly at the appellant's farm. Throughout this period the appellant made repeated attempts to consummate the marriage but the respondent showed aversion and resisted all attempts. The respondent then left for Europe. The appellant was medically examined and found normal. The respondent refused medical examination. Attempts were made to induce the respondent to return, including provision of passage money, but she refused. In a letter dated 31 October 1931 she expressed a desire to marry another man. The petition was filed on 14 January 1932, some seventeen months after the marriage.

Issues

  1. Whether the facts on record justify a presumption of incapacity to consummate the marriage.
  2. Whether the period of cohabitation was sufficient to establish permanent impotency.
  3. Whether refusal to submit to medical inspection, coupled with persistent refusal to consummate, raises a legal presumption of impotence.

Orders

  • Appeal allowed.
  • Decree nisi of nullity granted.
  • No order as to costs.

Rules and key headnotes

Nullity of Marriage — Presumption of Impotence — Refusal to Consummate and Refusal of Medical Inspection
Where a wife persistently refuses to consummate the marriage and also refuses to submit to medical inspection ordered by the court, a legal presumption may be drawn that she is incompetent to consummate the marriage.
Nullity of Marriage — Period of Cohabitation — No Fixed Minimum Required
No definite minimum period of cohabitation is demanded by law before a decree of nullity may be granted on grounds of incapacity to consummate; each case must be considered on its own particular circumstances.
Nullity of Marriage — Wilful Refusal Distinguished from Incapacity
Wilful refusal by itself does not constitute grounds for a decree of nullity, but refusal coupled with refusal to submit to medical inspection may be sufficient from which to infer incapacity arising from nervousness, hysteria, or unconquerable aversion.

Cases cited (13)

  • W v W (otherwise L) (1912) P 78
  • F v P (falsely called F) (75 LTR 192)
  • Napier v Napier (otherwise Goodban) (1915) P 184
  • Dickinson v Dickinson (otherwise Philips) (1913) P 207
  • S v S (otherwise M) (24 TLR 149)
  • M v M (otherwise H) (22 TLR 719)
  • P v P (otherwise F) (27 TLR 429)
  • C v C (otherwise H) (27 TLR 421)
  • U (falsely called F) v P (163 Eng Rep 1482)
  • C (falsely called T) (164 Eng Rep 224)
  • D v D (otherwise P) (1913) PD 108
  • N v N (otherwise V) (1915) PD 184
  • H v H (otherwise N) (39 TLR 108)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A v B (C.A. 9-1932.) [1932] EACA 5 (1 January 1932)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.