[2004] KEHC 536 (KLR)
The court found that the applicant failed to provide evidence of bias by the District Magistrate. Upon reviewing the annexed proceedings, it was clear that the divorce cause had not been heard and the order for refund of dowry, which the applicant complained of, had not been made by the court. The court merely...
Source-derived case information.
- Citation
- [2004] KEHC 536 (KLR)
- Parties
- Applicant: Grace Nelima; Respondent: Jamin Simiyu
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 138 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Transfer Divorce Cause
- Outcome
- application dismissed with costs to the respondent
- Judges
- JK Sergon
- Legal Topics
- Transfer of Proceedings, Judicial Bias, Matrimonial Causes, Dowry Refund
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Nelima
Applicant
Jamin Simiyu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Transfer Divorce Cause
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds of bias by the District Magistrate to warrant transfer of Divorce Cause No. 3 of 2003 to another court.
- 2 Whether the law permits transfer of matrimonial causes under the circumstances presented.
Ratio Decidendi
The court found that the applicant failed to provide evidence of bias by the District Magistrate. Upon reviewing the annexed proceedings, it was clear that the divorce cause had not been heard and the order for refund of dowry, which the applicant complained of, had not been made by the court. The court merely marked the cause as S.O.G. In the absence of proof of bias or any substantive irregularity, and given the lack of a specific statutory provision for transfer of matrimonial causes, the application was found to lack merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The chamber summons is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISC APPL. NO.; 138 OF 2003
GRACE NELIMA ………………… APPLICANT
VS
JAMIN SIMIYU …………………. RESPONDENT
R U L I N G
The applicant herein, Grace Nelima, is praying to have Divorce cause No. 3 of 2003 in Sirisia DM’s court transferred to another court of competent jurisdiction for hearing and determination. The main ground advanced to back up the application is that the District Magistrate at Sirisia has shown open bias against her and has even gone to the extend of making an order for a refund of the dowry. The summons is supported by the applicant’s affidavit sworn on 10th July 2003. it is her argument that it would be to the interest of justice and fair play if the above case is transferred to enable her get a fair hearing. She has annexed a copy of typed proceedings to the affidavit in support of the summons.
The summons is opposed by the Respondent who filed a replying affidavit. The respondent’s ground of argument is that the applicant has not shown the kind of bias the Sirisia Distrct Magistrate has exhibited in handling the said Divorce cause. It was further averred by the respondent that the applicant has been unwilling to bring her witnesses to testify in court.
I have examined the law relating to the matrimonial causes. The substantive law is under the matrimonial causes Act Cap. 152 Laws of Kenya. The law does not provide for a provision of transfer of matrimonial causes. I think in the absence of such a provision I will fall back to Section 18 (1) (b) of the Civil Procedure Act. Such applications are normally instituted by filing a Notice of Motion. However I will overlook the fact that the application before me is a summons instead of a motion.
The main ground put forward in support of this application is that the District magistrate has shown that he is biased in hearing the Divorce cause. I have perused the proceedings annexed to the affidavit in support. It is clear that the Divorce cause has not been heard. In fact it is the Respondent who informed the DM’s court on 5. 6.2003 that he had not been refunded the dowry. The court did not make the order complained of by the applicant. The DM’s court simply marked the cause as S.O.G. In the absence of proof
I think the application lacks merit. Consequently this chamber summons is ordered dismissed with costs to the respondent.
READ THIS 22nd DAY OF January 2004
J.K. SERGON
JUDGE