[2014] KEHC 4867 (KLR)
The court held that since the marriage in question was solemnized under the Marriage Act, Cap 150, the jurisdiction to hear and determine the divorce cause resides exclusively with the High Court. The Subordinate Court does not have jurisdiction over such matters. The application for transfer was therefore...
Source-derived case information.
- Citation
- [2014] KEHC 4867 (KLR)
- Parties
- Applicant: C O W; Respondent: N A M
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 5B of 2011
- Procedural Posture
- Divorce Cause / Ruling on Application for Transfer of Suit
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Divorce Jurisdiction, Marriage Act Procedure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
C O W
Applicant
N A M
Respondent
Procedural Posture
Divorce Cause / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the High Court has jurisdiction to hear a divorce cause where the marriage was solemnized under the Marriage Act.
- 2 Whether the divorce cause can be transferred to the Subordinate Court.
Ratio Decidendi
The court held that since the marriage in question was solemnized under the Marriage Act, Cap 150, the jurisdiction to hear and determine the divorce cause resides exclusively with the High Court. The Subordinate Court does not have jurisdiction over such matters. The application for transfer was therefore dismissed, and the cause was ordered to be set down for hearing before the High Court on a priority basis.
Court Disposition
application dismissed
Orders
- The application for transfer is dismissed.
- The cause shall be set down for hearing on priority basis before the High Court.
Full Case Text
Judgment text and source record
19 paragraphs
No. 281/14
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
DIVORCE CAUSE NO. 5B OF 2011
C O W….................…PETITIONER/APPLICANT
VERSUS
N A M……………………………RESPONDENT
RULING
The application dated 30th September 2013 is for transfer of Divorce Cause No. 5 of 2011 from the High Court to the Subordinate Court. It is premised on grounds that the Lower Court has jurisdiction to determine the cause and the respondent shall suffer no prejudice if the matter is transferred to the Lower Court.
The application is supported by an affidavit deponed by Rachel Amala, an advocate of the High Court who is in conduct of the matter on behalf of the applicant who deposes that the case was inadvertently filed at the High Court and it will be in the interest of justice to have the matter heard in the Subordinate Court.
The application is unopposed.
Paragraph 1 of the Petition stipulates thus:-
“That, the Petitioner C.O.W. Sometimes on 2nd February, 1991 solemnized their marriage with the Respondent N.C.M at Machakos DCs Office within the Republic of Kenya”.
A marriage solemnized by a District Commissioner would ordinarily be celebrated and registered pursuant to the provisions of the Marriage Act, Cap 150 of the Laws of Kenya.The Lower Court lacks jurisdiction to hear a cause where the marriage was solemnized under the Marriage Act. (See JSM versus DIS Nairobi (Milimani) Divorce Cause No. 167of2011). The jurisdiction resides with the High Court.
In the premises the application is dismissed. Due process of law shall be followed and the cause shall be set down for hearing on priority basis.
It is so ordered.
DATED, SIGNED and DELIVERED this 19TH day of MAY, 2014.
L.N. MUTENDE
JUDGE