[2014] KEHC 3392 (KLR)
The court held that while divorce petitions are ordinarily determined by oral evidence, Rule 25 of the Matrimonial Causes Rules grants the court discretion to allow affidavit evidence in appropriate circumstances. Given the applicant's documented medical complications and the fact that the respondent did not oppose...
Source-derived case information.
- Citation
- [2014] KEHC 3392 (KLR)
- Parties
- Applicant: H-P C S; Respondent: M NA A
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 2 of 2013
- Procedural Posture
- Divorce Cause / Interlocutory Application for Determination of Petition by Affidavit Evidence
- Outcome
- application allowed
- Judges
- DN Musyoka
- Legal Topics
- Divorce Procedure, Affidavit Evidence, Matrimonial Causes Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H-P C S
Applicant
M NA A
Respondent
Procedural Posture
Divorce Cause / Interlocutory Application for Determination of Petition by Affidavit Evidence
Legal Issues
- 1 Whether the court should allow the divorce petition to be determined on the basis of affidavit evidence rather than oral testimony due to the applicant's medical condition.
- 2 Whether Rule 25 of the Matrimonial Causes Rules grants the court discretion to permit affidavit evidence in matrimonial causes.
Ratio Decidendi
The court held that while divorce petitions are ordinarily determined by oral evidence, Rule 25 of the Matrimonial Causes Rules grants the court discretion to allow affidavit evidence in appropriate circumstances. Given the applicant's documented medical complications and the fact that the respondent did not oppose or defend the petition, the court found no prejudice would be suffered by the respondent if the matter proceeded on affidavit evidence. The application was therefore merited and allowed, with costs in the cause.
Court Disposition
application allowed
Orders
- The application to determine the divorce petition on affidavit evidence is allowed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 2 OF 2013
H-P C S………………..PETITIONER
VERSUS
M NA A……….……..RESPONDENT
RULING
The application for determination is the summons dated 16th May 2014 taken out under Rule 25 of the Matrimonial Causes Act. It is founded on the affidavit of counsel for the applicant sworn on 16th May 2013 and that of the applicant sworn on 31st January 2014.
The applicant would like his petition for divorce dated 7th January 2013 determined on the basis of affidavit evidence on the grounds that he suffers from various medical complications and his doctors have advised him against long distance travel. He has attached to his affidavit a letter dated 18th February 2013 by Dr. Pillar of the Jenner Practice, which confirms that he suffers from several medical problems, and advises that he should not travel long distances.
The petition on record was served on the respondent. There is an affidavit of service on record to evidence service. The respondent did not appear nor file answer to the petition. On 25th April 2013, the Deputy Registrar certified the cause as undefended.
As a matter of cause, petitions in divorce causes are to be disposed of by oral evidence. By their very character the allegations made in pleadings filed in divorce matters are provable by way of the parties attending court and making statements orally on oath to give vent or breathe life to their allegations. A petition is not in the nature of an application, and it ideally ought not be disposed of without a formal appearance by the party or parties in court.
The application is premised on Rule 25 of the Matrimonial Causes Act. It must be stated from the outset that there is no Rule 25 of the said Act, but there is a Section 25 of the said Act which provides for alimony. I suppose that the applicant is referring to Rule 25 of the Matrimonial Causes Rules.
Rule 25 of the Matrimonial Causes Rules governs evidence in matrimonial causes. Rule 25 (1) provides for witnesses at the trial or hearing of any matrimonial case being examined orally and in open court. There is though a proviso to that provision which gives discretion to the court, on application, to allow proof of certain facts by affidavit.
Going by the said provision I do therefore have discretion to entertain the summons dated 11th May 2013. As the cause is undefended, the respondent would suffer no prejudice should the matter be disposed of in the manner proposed by the applicant.
I do find merit in the said application, and I do hereby allow the same on the terms proposed. Costs shall be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this 31ST DAY OF July 2014.
W. MUSYOKA
JUDGE