[2003] KEHC 253 (KLR)
The court found that the respondent's reply to petition and cross petition were procedurally defective. The respondent failed to serve the co-respondent, mislabelled the document, and filed an amended answer and cross petition without obtaining leave of court as required by the Matrimonial Cases Rules. These...
Source-derived case information.
- Citation
- [2003] KEHC 253 (KLR)
- Parties
- Applicant: Edith Mary Wamalwa; Respondent: Ronnie Mutai Opicho
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 2001
- Procedural Posture
- Divorce Cause / Ruling on Interlocutory Application
- Outcome
- Application partially allowed.
- Legal Topics
- Matrimonial Procedure, Striking Out Pleadings, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edith Mary Wamalwa
Applicant
Ronnie Mutai Opicho
Respondent
Procedural Posture
Divorce Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the respondent's reply to petition and cross petition should be struck out for being defective and an abuse of court process.
- 2 Whether the respondent required leave of court to amend his answer and cross petition after service.
- 3 Whether the petition should proceed as undefended.
Ratio Decidendi
The court found that the respondent's reply to petition and cross petition were procedurally defective. The respondent failed to serve the co-respondent, mislabelled the document, and filed an amended answer and cross petition without obtaining leave of court as required by the Matrimonial Cases Rules. These procedural irregularities prevented the Registrar from issuing the necessary certificate, thereby stalling the proceedings. The court held that compliance with procedural rules is mandatory and that failure to do so renders the pleadings liable to be struck out. Consequently, the court allowed the applicant's prayer to strike out the defective pleadings but declined to declare the...
Court Disposition
Application partially allowed.
Orders
- The respondent's reply to petition and cross petition filed on 14th September 2001 and answer to petition filed on 22nd April 2003 are struck out.
- Prayer to have the petition proceed as undefended is declined; certification to be done by the Deputy Registrar.
Full Case Text
Judgment text and source record
16 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI DIVORCE CAUSE NO. 45 OF 2001
EDITH MARY WAMALWA…………………………………………PETITIONER
Versus
RONNIE MUTAI OPICHO………………………………………..RESPONDENT
RULING
The applicant, who is also the petitioner, has filed an application under Section 39(1) Matrimonial Cases Act and Rules 4(5), 6(1) of the Matrimonial Cases Rules. The applicant is seeking for Orders:
1) The Replying to petition and Cross Petition filed on the 14th September 2001 and the answer to Petition filed on the 22nd April 2003 be struck out for reasons that the petitions are an abuse of the court process and they are fatally defective and bad in law. The application is supported by the Affidavit of Mrs. Abida Aroni Counsel for the applicant who has detailed their efforts to obtain the Registrar’s certificate without success as the answer and cross petition filed by the respondent is defective. The respondent did not attend court although served nor did he file a replying affidavit.
The petition herein was filed on 8th March 2001 and served upon the respondent on 29th August 2001. The respondent’s advocate filed a reply to petition and cross petition on 14th September 2001. The Registrar declined to issue a certificate as the pleadings were not in order. The respondent had filed a corespondent whom he had not served with the petition. Secondly the petition was wrongly headed as “Replying” instead of “Answer”. On 22nd April 2003 the respondent filed an answer and cross petition without first obtaining the leave of the court to amend the answer. For reasons that the pleadings are not in order. The petitioner has not been able to get the Registrar’s Certificate and they now apply for the said answer to be struck out.
I have looked at the provisions of the Matrimonial Cases Rules, the respondent needed leave of the court to amend the answer to the petition after it had been served upon the petitioner. So, are the supplemental petition that the respondent filed on 22nd April 2003.
Accordingly I allow the petitioner’s prayer No. 1 of the Chamber Summons dated 5th November 2003.
As regards prayer No.2 that seeks for an order that the petition do proceed as undefended, I decline to grant as the cause should be certified by the Deputy Registrar.
Costs of this application be in the cause.
Ruling read and signed on 30th January, 2003.
MARTHA KOOME
JUDGE