[2010] KEHC 1702 (KLR)
The court found that the petition was incompetent due to non-compliance with the Matrimonial Causes Act and Rules, specifically the failure to serve the required notices and procedural defects in the form and service of the petition. The absence of any opposition from the petitioner further supported the...
Source-derived case information.
- Citation
- [2010] KEHC 1702 (KLR)
- Parties
- Petitioner: AMI; Respondent: AG
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 35 of 2007
- Procedural Posture
- Divorce Cause / Ruling on Application to Strike Out Petition or Stay Proceedings
- Outcome
- petition struck out with costs
- Legal Topics
- Matrimonial Causes Act, Divorce Petition, Service of Process, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AMI
Petitioner
AG
Respondent
Procedural Posture
Divorce Cause / Ruling on Application to Strike Out Petition or Stay Proceedings
Legal Issues
- 1 Whether the petition contravened the provisions of the Matrimonial Causes Act and Rules.
- 2 Whether the required notices under the Matrimonial Causes Rules were served.
- 3 Whether the petition was competent and properly served.
Ratio Decidendi
The court found that the petition was incompetent due to non-compliance with the Matrimonial Causes Act and Rules, specifically the failure to serve the required notices and procedural defects in the form and service of the petition. The absence of any opposition from the petitioner further supported the respondent's application. Consequently, the court struck out the petition with costs to the respondent.
Court Disposition
petition struck out with costs
Orders
- The petition is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Divorce Cause 35 of 2007
AMI..……………….….PETITIONER
VERSUS
AG……….. ..……....RESPONDENT
RULING
This is an application to strike out the petition or stay proceedings.The respondent further prays that service of the petition be declared null and void.The application is brought under Section 8 of the Matrimonial Causes Act, Rules 4, 5, 6, 7, 9, 10 and 13 of the Matrimonial Causes Rules and Order 9 (1) of the Civil Procedure Rules and all other enabling provisions of the Law.
The application is premised on the grounds that the Petition contravenes the provisions of the Matrimonial Causes Act and Rules and that no Notices as required by the Rules have been served.There is a Memorandum of Appearance under Protest filed under Rule 13 (e) of the Matrimonial Causes Rules.There are various grounds for the appearance under protest which challenge the form, competence and service of the petition.
Upon being served with the application the Petitioner failed to file any reply, grounds of opposition or any form of response.In the event the application is not opposed.
On the basis of the reasons set out by respondent in the Appearance filed Under Protest (Rule 13 (2), I am satisfied that the Petition is incompetent and the respondent is entitled to the orders she seeks.Accordingly the Petition is struck out with costs.
It is so ordered.
DATED AND DELIVERED ATMOMBASATHIS 7TH DAY OF JUNE 2010.
F. AZANGALALA
JUDGE
Read in the presence of:-
Chakera for the Respondent.
F. AZANGALALA
JUDGE
7TH JUNE 2010