[2001] KEHC 702 (KLR)
The court found that the applicant had demonstrated exceptional hardship and fear for his life due to the respondent's conduct, including desertion, threats, and alleged orchestration of violence. The court was satisfied that reconciliation was not possible and that the statutory bar of three years should not...
Source-derived case information.
- Citation
- [2001] KEHC 702 (KLR)
- Parties
- Applicant: J K; Respondent: T M H
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 14 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Divorce Petition Before Statutory Period
- Outcome
- application granted
- Legal Topics
- Divorce Petition, Matrimonial Hardship, Statutory Waiting Period, Exceptional Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J K
Applicant
T M H
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Divorce Petition Before Statutory Period
Legal Issues
- 1 Whether the applicant should be granted leave to file a divorce petition before the expiry of the statutory three-year period since marriage.
- 2 Whether the applicant has demonstrated exceptional hardship or circumstances justifying the grant of leave.
Ratio Decidendi
The court found that the applicant had demonstrated exceptional hardship and fear for his life due to the respondent's conduct, including desertion, threats, and alleged orchestration of violence. The court was satisfied that reconciliation was not possible and that the statutory bar of three years should not prevent the applicant from seeking relief. Consequently, leave was granted to file a divorce petition notwithstanding the statutory period.
Court Disposition
application granted
Orders
- Leave is granted to the applicant to file a petition for divorce notwithstanding the three-year statutory period.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS DIVORCE CAUSE NO. 14 OF 2001 (OS)
IN THE MATTER OF A PROPOSED PETITION BY J K FOR THE DISSOLUTION OF HIS MARRIAGE WITH T M H
RULING
The application by Originating Summons is brought under Section 6 of the Matrimonial Causes Act and Rule 12 (II) of the Matrimonial Causes Rules. It is supported by an Affidavit sworn by the applicant J K on 21st March 2000. He seeks leave of the court to file and Petition for a Divorce notwithstanding that three years have not lapsed since the celebration of the said marriage.
The applicant cites extreme and exceptional hardship occasioned upon him by his wife who has deserted the matrimonial home on several occasions since the celebration of the marriage for as long as three months without any explanation. She has continued to harass him over some property Registered in their joint names known as [particulars withheld] which she claims he had bought for her and wants it back.
The applicant however fears for his life now because his wife after one of those absences returned and informed him she had visited a very strong Witch doctor who would bewitch him making him mad and has continued to threaten to cause him actual bodily harm. He finds her threats real as in December 1999 he was attached by a group of thugs who gained access into the house using keys and even opened the safe using a set of keys. Later his wife told him she was behind the attack and she would continue and has threatened to have him killed. The incidence was reported to the police but she was released after a brief arrest.
The institution of a marriage is one that should not be interfered with even by the courts without good reason. The parties must try to reconcile when problems arise. However, the applicant says this cannot work as all attempts to speak to his wife have been met with extreme hostility. He now lives in fear for his dear life after receiving death threats and being attacked by thugs which the wife claims responsibility. It is unfortunate that such acts can be committed by one human being towards another. I have no reason doubt that the petitioner is undergoing a lot of hardship and fear. For the reasons given, I shall grant the leave to file a petition for Divorce notwithstanding the three year statutory period. The application shall therefore succeed.
Dated at Mombasa this 1st August 2001.
P.M. TUTUI
COMMISSIONER OF ASSIZE