[2014] KEHC 3099 (KLR)
The court found that the petitioner had failed to take any steps to prosecute the divorce petition for four years since its filing, despite being invited by the respondent to set the matter down for hearing. The court noted that the petitioner resides abroad and did not appear or send counsel for the present...
Source-derived case information.
- Citation
- [2014] KEHC 3099 (KLR)
- Parties
- Applicant: G M K; Respondent: C K K
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 12 of 2010
- Procedural Posture
- Divorce Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- petition dismissed for want of prosecution
- Judges
- JV Juma
- Legal Topics
- Divorce Proceedings, Custody of Children, Maintenance Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G M K
Applicant
C K K
Respondent
Procedural Posture
Divorce Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the petition should be dismissed for want of prosecution.
- 2 Whether the petitioner has demonstrated interest in prosecuting the divorce petition.
- 3 Whether the claims for custody and maintenance remain relevant given the age of the children.
Ratio Decidendi
The court found that the petitioner had failed to take any steps to prosecute the divorce petition for four years since its filing, despite being invited by the respondent to set the matter down for hearing. The court noted that the petitioner resides abroad and did not appear or send counsel for the present application. Additionally, the court observed that the claims for custody and maintenance had become obsolete as the children were all over 30 years old. The court concluded that there was no valid reason to keep the suit alive and dismissed the petition for want of prosecution.
Court Disposition
petition dismissed for want of prosecution
Orders
- The petition dated 22nd February, 2010 is dismissed for want of prosecution.
- No orders as to costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 12 OF 2010
G MK..………..…..….........……...…PETITIONER
VERSUS
C K K…………..................………RESPONDENT
RULING
By way of this Notice of Motion dated 20th May, 2013 the applicant prays that the petition dated 22nd February, 2010 be dismissed for want of prosecution. In the said petition the petitioner G M K had prayed for the dissolution of her marriage to the respondent, permanent custody of the four (4) children of the marriage and orders of maintenance. The respondent did enter appearance and did on 21st May, 2010 file his reply to the petition. I note that on 20th July, 1995 the same petitioner did file a suit in the High Court in Mombasa seeking a divorce. The petition was heard by Hon. Justice S. O. Oguk (Retired) who on 30th August, 1995 dismissed the petition. Ten (10) years later on 11th March, 2010 the petitioner again filed a petition seeking a divorce. The respondent raised a preliminary objection and argued that this present suit was ‘res judicata’. In my ruling dated 8th December, 2010 I dismissed the preliminary objection and ruled that the present suit was properly on record. However from that dated the petitioner has taken no steps to set her petition down for hearing. Counsel for the respondent did severally invite the petitioner to take dates for hearing but to no avail. The petitioner currently lives in Spain. It is now four (4) years since the suit was filed yet the petitioner has taken no steps to prosecute her petition. The prayers for custody of the four (4) children of the marriage and their maintenance appear to have become obsolete given that the children are all aged over 30 years and most likely do not require maintenance. The petitioner was duly served with a hearing notice for this present application but she did not appear in court neither did she send a lawyer to represent her. Clearly the petitioner has no interest in this petition. I see no valid reason why this suit ought to be kept alive. I do hereby dismiss the same for want of prosecution. No orders on costs.
Dated and delivered in Mombasa this 1st day of September, 2014.
M. ODERO
JUDGE
In the presence of:
No Appearance by either parties