[2013] KEHC 4964 (KLR)
The court found that the applicant failed to demonstrate exceptional hardship as required by Section 6(1) of the Matrimonial Causes Act. The separation was due to the nature of the parties' employment, a circumstance known to both at the time of marriage. The respondent's willingness to seek reconciliation and the...
Source-derived case information.
- Citation
- [2013] KEHC 4964 (KLR)
- Parties
- Applicant: C.M.M.; Respondent: E.M.N.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Divorce Before Statutory Period
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Divorce Proceedings, Leave to File Before Statutory Period, Exceptional Hardship, Marriage Duration Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C.M.M.
Applicant
E.M.N.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Divorce Before Statutory Period
Legal Issues
- 1 Whether the applicant has demonstrated exceptional hardship to warrant leave to file for divorce before the statutory three-year period has elapsed.
- 2 Whether the separation due to work postings constitutes exceptional hardship under the law.
- 3 Whether reconciliation efforts have been sufficiently explored before seeking leave for early divorce.
Ratio Decidendi
The court found that the applicant failed to demonstrate exceptional hardship as required by Section 6(1) of the Matrimonial Causes Act. The separation was due to the nature of the parties' employment, a circumstance known to both at the time of marriage. The respondent's willingness to seek reconciliation and the proximity to the expiry of the statutory period further weighed against granting leave. The court emphasized that the statutory period is designed to give couples an opportunity to adjust and attempt reconciliation before resorting to divorce. Accordingly, the application for leave was denied.
Court Disposition
application dismissed
Orders
- Leave to commence divorce proceedings before the expiry of three years is denied.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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IN THE MATTER OF AFRICAN CHRISTIAN MARRIAGE AND DIVORCE CAP. 151, MATRIMONIAL CAUSE ACT, CAP. 152 LAWS OF KENYA
AND
IN THE MATTER OF A PROPOSED PETITION BY C.M.M FOR THE DISSOLUTION OF HIS MARRIAGE WITH E.M.N.
C.M.M.…………………………………PETITIONER
VERSUS
E.M.N.………………………......…..RESPONDENT
RULING
By this originating summons dated 15th June, 2012 the petitioner seeks leave from this court to commence divorce proceedings notwithstanding the fact that three (3) years have not elapsed since the celebration of his marriage to the respondent. The respondent did file a reply to which she opposed the application.
It is not disputed that the couple got married on 14th August, 2010. Since the celebration of their marriage they have lived apart since due to the nature of their work (the petitioner being an Administration Police Officer whilst the respondent is an Army Officer) they have been posted in different towns. Section 6(1) of the Marriage Act Cap 152, Laws of Kenya permits a spouse to petition a court for leave to commence divorce proceedings notwithstanding the fact that six (6) months have not elapsed since the date of marriage. The only condition is that the applicant show ‘exceptional hardship’ to exist. In this case the fact that the couple live apart is due to exigencies of work. The applicant must have been fully aware of the nature of both their jobs when he entered into the marriage. The respondent in opposing the application has shown a desire to seek reconciliation. Indeed the three (3) year period exists to enable a couple to settle down in marriage and to adjust to the changes it necessitates. The applicant has not shown what (if any) steps have been made to seek out a solution.
In view of the respondent’s desire to resolve the issues besetting the union and in view of the fact that only a few months remain to the three (3) year mark when leave will no longer be required, I am minded to disallow this application. The parties may use the remaining few months to attempt to reconcile their differences. As such leave is hereby denied. Each party to meet their own costs.
Dated and delivered in Mombasa this 25th day of February, 2013.
M. ODERO
JUDGE
In the presence of:
Ms. Kariuki h/b for Petitioner