[2021] KEHC 13292 (KLR)
The court found that the applicant provided persuasive reasons for the delay in filing the petition for nullification of marriage. The application was unopposed, and the court was satisfied that granting leave would not prejudice the respondent, who would still have an opportunity to oppose the petition when filed....
Source-derived case information.
- Citation
- [2021] KEHC 13292 (KLR)
- Parties
- Applicant: BOO; Respondent: AKM
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause E005 of 2020
- Procedural Posture
- Annulment Cause / Ruling on Application for Leave to File Nullification Petition Out of Time
- Outcome
- application allowed
- Judges
- JV Juma
- Legal Topics
- Annulment of Marriage, Limitation Periods, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
BOO
Applicant
AKM
Respondent
Procedural Posture
Annulment Cause / Ruling on Application for Leave to File Nullification Petition Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file a petition for nullification of marriage after the statutory one-year period has lapsed.
- 2 Whether the delay in filing the petition is justified and whether granting leave would prejudice the respondent.
Ratio Decidendi
The court found that the applicant provided persuasive reasons for the delay in filing the petition for nullification of marriage. The application was unopposed, and the court was satisfied that granting leave would not prejudice the respondent, who would still have an opportunity to oppose the petition when filed. The statutory limitation period under Section 73(2)(a) of the Marriage Act can be extended at the court's discretion under Rule 15(1) of the Matrimonial Proceedings Rules 2020. Accordingly, the court exercised its discretion to allow the application for leave to file the petition out of time, directing that the petition be filed within forty days from the date of the ruling.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file a petition for nullification of marriage out of time.
- The petition must be filed within forty (40) days of the date of this ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
ANNULMENT CAUSE NO. E005 OF 2020
IN THE MATTER OF A PROPOSED ANNULMENT OF MARRIAGE
BETWEEN
BOO....................................................................................... PETITIONER
AND
AKM ...................................................................................RESPONDENT
RULING
(1) Before Court is the Originating Summons dated 18th August 2020,the Petitioners BOOseeks for orders:-
“1. THAT the Applicant be at liberty to file a Petition for the nullification of her marriage with the said AKM solemnized on the 3rd day of March 2018 notwithstanding that 1 year has passed since the date of said marriage.
2. THAT this Honourable Court be pleased to make such orders as it may deem fit.”
(2) The Summons which is premised upon Part IV(Subsidiary Legislation) of the Matrimonial Proceedings Rules 2020, Order 15(1)and other enabling provisions of the law) was supported by the Affidavit of even date sworn by the petitioner.
(3) Despite having been served with the Summons the Respondent failed to enter appearance and did not file any response to the same. As such the Summons was unopposed.
(4) The Petitioner and the Respondent got married to each other on 3rd March 2018as evidenced by the copy of their Marriage Certificate Serial Number [….](Annexture ‘B001’).The Petitioner claims that todate the marriage has never been consummated. She therefore seeks to file an application seeking the nullification of the said Marriage.
(5) Section 73(2) (a)of the Marriage Actprovides that a Petition seeking to nullify a marriage must be filed within one (1) year from the date of the Marriage. It goes without saying that more than one (1) yearhas elapsed since the Petitioners marriage to the Respondent. Hence this application seeking leave to file said Petition out of time.
(6) I have considered the present application as well as the Supporting Affidavit sworn by the Petitioner. Rule 15(1) of the Matrimonial Proceedings Rules 2020provides that:-
“No party may file pleadings out of time except with leave of the Court on application or extension of time for that purpose and such terms as the Court may think fit.”
(7) The Petitioner has explained the reasons for the delay in filing a Petition to nullify the marriage. In my view the reasons advanced are persuasive. I note that this application is unopposed. I find that the Respondent will not suffer any prejudice if the present application is allowed as he will be accorded opportunity to oppose the Petition when filed.
(8) Accordingly I allow the present Summons in terms of prayer (1) thereof. The said Petition to be filed within forty (40) daysof the date of this Ruling. No orders on costs.
Dated in Nairobithis 30TH day of JULY, 2021.
…………………………………..
MAUREEN A. ODERO
JUDGE