[2002] KEHC 288 (KLR)
The court found that although the application for custody, maintenance, and education of the children was procedurally defective—being by way of Chamber Summons and lacking a court stamp—the respondent did not object to the defect and participated in the proceedings. The court emphasized that the issues raised in...
Source-derived case information.
- Citation
- [2002] KEHC 288 (KLR)
- Parties
- Applicant: A A; Respondent: B S N G
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 17 of 1999
- Procedural Posture
- Divorce Cause / Application for Custody, Maintenance and Education of Children Post Divorce
- Outcome
- Application struck out. No order as to costs.
- Legal Topics
- Divorce Proceedings, Child Custody, Child Maintenance, Child Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A A
Applicant
B S N G
Respondent
Procedural Posture
Divorce Cause / Application for Custody, Maintenance and Education of Children Post Divorce
Legal Issues
- 1 Whether the application for custody, maintenance and education of the children is properly before the court.
- 2 Whether procedural defects in the application warrant its dismissal or striking out.
- 3 Whether the welfare and interests of the children require the court to entertain the application despite procedural defects.
Ratio Decidendi
The court found that although the application for custody, maintenance, and education of the children was procedurally defective—being by way of Chamber Summons and lacking a court stamp—the respondent did not object to the defect and participated in the proceedings. The court emphasized that the issues raised in the application were already part of the original petition and cross-petition. Given the paramount importance of the welfare and interests of the children, the court exercised its discretion not to dismiss the application outright but instead struck it out, allowing the applicant the opportunity to file a proper application if desired. No order as to costs was made.
Court Disposition
Application struck out. No order as to costs.
Orders
- The application dated 14th September 2001 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO.17 OF 1999
A A................................................PETITIONER VERSUS B S N G.....................................RESPONDENT
J U D G M E N T
The Applicant (Petitioner) and the Respondent were married on 18th October 1993. They had two children of the said marriage namely R A who is now aged 8 years and T A who is now 7 years old. On 31st May 1999, the Petitioner filed Petition seeking desolution of the said marriage and custody of the issues of marriage. The Respondent filed an answer to that Petition and Cross Petition.For some reasons not made clear in the records before me, only the Petition for Divorce was heard on 25th September 2000 and was granted on the same day. The question of the custody of the children was not gone into and this application is the purported application dated 14th September 2001 seeking that the Petitioner herein be granted the custody, maintenance and education of the children of the said marriage namely R A and T A. It is also seeking that costs of this application be in the cause.
This application is bad in law as it is by way of Chamber Summons but the same Chamber Summons is not stamped by court stamp at least the copy in the file which as I can see is the original.
I note however, that the Respondent did not raise this defect and has acted on the application. I note also that the questions raised in the application were raised, as I have stated above in the Petition and in the cross-petition. Under such circumstances, I will not dismiss the application.
I will strike it out so that if the Applicant still wishes he can file another application as this is a matter concerning the welfare and interest of children.
Application dated 14th September 2001 is struck out. No order as to costs.
Dated and Delivered at Mombasa this 12th Day of November 2002.
J.W. ONYANGO OTIENOJUDGE