[2006] KEHC 2291 (KLR)
The court determined that proceeding with the hearing as an undefended cause was procedurally unfair to the respondent, given the existence of a cross-petition on record. The judge found that the confusion in the cause list and the absence of the respondent's counsel should not prejudice the respondent's right to a...
Source-derived case information.
- Citation
- [2006] KEHC 2291 (KLR)
- Parties
- Petitioner: F.T.M; Respondent: J.O.O
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 27 of 2005
- Procedural Posture
- Divorce Cause / Order on Hearing Procedure
- Outcome
- proceedings struck out; matter to be heard afresh as defended cause
- Judges
- KH Rawal
- Legal Topics
- Divorce Proceedings, Undefended Petition, Cross Petition, Ex Parte Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
F.T.M
Petitioner
J.O.O
Respondent
Procedural Posture
Divorce Cause / Order on Hearing Procedure
Legal Issues
- 1 Whether it was fair to proceed ex-parte in a divorce cause where a cross-petition had been filed by the respondent.
- 2 Whether the proceedings of 25th May, 2006 should be struck out due to procedural unfairness.
Ratio Decidendi
The court determined that proceeding with the hearing as an undefended cause was procedurally unfair to the respondent, given the existence of a cross-petition on record. The judge found that the confusion in the cause list and the absence of the respondent's counsel should not prejudice the respondent's right to a fair hearing. Accordingly, the proceedings of 25th May, 2006 were struck out, and directions were given for the matter to be heard afresh as a defended cause before a different judge.
Court Disposition
proceedings struck out; matter to be heard afresh as defended cause
Orders
- The proceedings of 25th May, 2006 are struck out from the court record.
- A fresh hearing date to be taken at the registry for the petition to proceed as a defended cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 27 of 2005
F.T.M ……….....................................………………. PETITIONER
VERSUS
J.O.O ………………....................................…………. RESPONDENT
ORDER OF THE COURT
I was made to understand when this matter was brought before me that the same was an undefended cause and that it was not placed on the cause list for today before any of the Judges in the Family Division.
I came to learn that it was fixed for hearing for Registrar’s certificate before the learned Deputy Registrar.
It is true that the date was taken by consent but due to the confusion in the Cause list, I shall not take against the Counsel for the Respondent for not appearing as it could be difficult to trace the movement of the file.
It came to me at about 11. 00 a.m. and I was made to understand that it was an undefended cause. So taking the words from the counsel I heard the matter.
I realized the otherwise when I started writing the judgment. I was shocked to see the cross-petition as well filed by the Respondent.
In the premises, it was unfair to the Respondent to hear the matter ex-parte.
I therefore strike out the proceedings of 25th May, 2006 from the court record and direct that a fresh date be taken at the registry for hearing this petition as a defended cause as rightly certified by the Learned Deputy Registrar.
To be just and ethical, I also direct that the petition be heard by any other Judge in the Family Division except me.
Dated and signed at Nairobi this 8th day of June, 2006.
K.H. RAWAL
JUDGE
25. 5.06