[2013] KEHC 5594 (KLR)
A petition for dissolution of marriage filed before the lapse of three years from the date of marriage, without prior leave of the court as required by section 6 of the Matrimonial Causes Act and rule 2 of the Matrimonial Causes Rules, is incompetent ab initio. The law does not provide for the regularisation or...
Source-derived case information.
- Citation
- [2013] KEHC 5594 (KLR)
- Parties
- Petitioner: I W K; Respondent: E G N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 206 of 2012
- Procedural Posture
- Divorce Cause / Ruling on Preliminary Objection and Application for Leave to File Petition Out of Time
- Outcome
- petition and originating summons struck out as incompetent; costs awarded to respondent
- Judges
- DN Musyoka
- Legal Topics
- Divorce Petitions, Matrimonial Causes Act, Leave to File Out of Time, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
I W K
Petitioner
E G N
Respondent
Procedural Posture
Divorce Cause / Ruling on Preliminary Objection and Application for Leave to File Petition Out of Time
Legal Issues
- 1 Whether a divorce petition filed before the lapse of three years from the date of marriage can be regularised by a subsequent application for leave under rule 2 of the Matrimonial Causes Rules.
- 2 Whether the petition for divorce filed in contravention of section 6 of the Matrimonial Causes Act is competent.
Ratio Decidendi
A petition for dissolution of marriage filed before the lapse of three years from the date of marriage, without prior leave of the court as required by section 6 of the Matrimonial Causes Act and rule 2 of the Matrimonial Causes Rules, is incompetent ab initio. The law does not provide for the regularisation or revival of such a petition by a subsequent application for leave. Therefore, both the Originating Summons seeking leave and the original petition for divorce are struck out as misconceived and incompetent. Costs are awarded to the respondent.
Court Disposition
petition and originating summons struck out as incompetent; costs awarded to respondent
Orders
- The Originating Summons dated 8th February 2013 is struck out as incompetent and misconceived.
- The petition for divorce dated 6th November 2012 is struck out.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 206 OF 2012
BETWEEN
I W K………....…..........…..PETITIONER
AND
E G N…………….…........…..RESPONDENT
RULING
The petitioner contracted marriage with the respondent on 3rd August 2012. On 7th November 2012 she lodged a petition for dissolution of the marriage. When notice to appear and a copy of the petition were served on the respondent, he filed a notice of preliminary objection on the grounds that the petition offended section 6 of the Matrimonial Causes Act.
The petitioner in response to the said notice of preliminary objection filed an Originating Summons dated 8th February 2013 asking for leave to file a petition for dissolution of the marriage contracted on 3rd August 2012 notwithstanding that three years had not lapsed. At the hearing of the Originating Summons on 2nd May 2013, it was urged that the said summons was intended to have the petition dated 6th November 2012 and filed in court on 7th November 2012 regularised.
Section 6 of the Matrimonial Causes Act states that no petition for divorce shall be presented to court unless at the date of the presentation of the petition three years have lapsed since the date of the marriage. A proviso to section 6 of the Matrimonial Causes Act envisages the grant of leave to file a petition before the three years have lapsed. The proviso is given effect by rule 2 of the Matrimonial Causes Rules which provides for the filing of an application for leave to present a petition before three years have expired since the celebration of marriage.
The question is, can a petition filed before the three years have elapsed be regularised by the filing of an application under rule 2 of the Matrimonial Causes Rules thereafter? I think not. The law is clear that a petition should be filed for dissolution of marriage after three years have lapsed, except where leave has been granted. There is nothing in the law to provide that where a petition is filed contrary to section 6 of the Matrimonial Causes Act the same can be cured by belatedly filing an application under rule 2 of the Matrimonial Causes Rules. In my view such a petition, filed in contravention of section 6, is as dead as a dodo. It cannot possibly be revived in any way.
My conclusion is that the petition for divorce dated 8th February 2013 was incompetent ab initio. It did not exist as a petition. It cannot therefore be resurrected. The Originating Summons dated 8th February 2013 serves no purpose at all. It is incompetent and misconceived. I strike it out and award costs to the respondent. The petition dated 6th November 2012 suffers a similar fate. The respondent shall have costs of the divorce cause too.
SIGNED DATED and DELIVERED in open court this 15TH day of July, 2013.
W. MUSYOKA
JUDGE