[2012] KEHC 518 (KLR)
The court found that the applicant had established a prima facie case of exceptional hardship, as the marital problems began almost immediately after the marriage was solemnized. The statutory three-year waiting period is intended to give couples an opportunity to attempt marital life, but where hardship is evident...
Source-derived case information.
- Citation
- [2012] KEHC 518 (KLR)
- Parties
- Applicant: J.M.N; Respondent: J.O.O
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 4 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Divorce Petition Before Expiry of Statutory Period
- Outcome
- Application allowed. Leave granted to file divorce petition before expiry of three years from marriage.
- Judges
- JV Juma
- Legal Topics
- Divorce Petition, Exceptional Hardship, Matrimonial Causes Act, Statutory Waiting Period
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.M.N
Applicant
J.O.O
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Divorce Petition Before Expiry of Statutory Period
Legal Issues
- 1 Whether the court should grant leave to file a divorce petition before the expiry of the statutory three-year period since marriage under Section 6(1) of the Matrimonial Causes Act.
- 2 Whether the applicant has demonstrated exceptional hardship justifying the grant of such leave.
Ratio Decidendi
The court found that the applicant had established a prima facie case of exceptional hardship, as the marital problems began almost immediately after the marriage was solemnized. The statutory three-year waiting period is intended to give couples an opportunity to attempt marital life, but where hardship is evident from the outset, it would be unjust to require the parties to remain married for the full period. The court exercised its discretion under Section 6(1) of the Matrimonial Causes Act to allow the applicant to file a divorce petition before the expiry of three years from the date of marriage.
Court Disposition
Application allowed. Leave granted to file divorce petition before expiry of three years from marriage.
Orders
- The applicant is at liberty to file a petition for divorce at the High Court at Mombasa for dissolution of the marriage with the respondent, notwithstanding that three years have not passed since the date of the marriage.
- Each party to meet their own costs for this application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Miscellaneous Application 4 of 2012
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IN THE MATTER OF: A PROPOSED PETITION BY J.M.N FOR DIVORCE
J.M.N……................................................. PETITIONER
=VERSUS=
J.O.O………….................................... RESPONDENT
RULING
By way of an Originating Summons dated 3rd May 2012 the Petitioner makes the following prayers:
“1. That the said J.M.N may be at liberty to file a Petition for Divorce at the High Court at Mombasa for dissolution of the marriage with the said J. A. O solemnized on the 9th March 2012, notwithstanding that 3 years have not passed since the date of the marriage.
2. That the summons and Petition be served by way of registered letter through the last known address of the Respondent”
The application was opposed by the Respondent who filed her replying affidavit on 18th July 2012.
The Petitioner and the Respondent are man and wife having solemnized their marriage on 9th March 2012 at the Attorney General’s Office in Mombasa. Barely two (2) months after that marriage the Petitioner filed this present application. S. 6(1) of the Matrimonial Causes Act, Cap 152 Laws of Kenya provides:
“6(1) No petition for divorce shall be presented to the court unless at the date of the presentation of the petition three years have passed since the date of the marriage
Provided that[my own emphasis] a judge of the court may, upon application being made to him in accordance with rules made under this Act, allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hardship suffered by the Petitioner or of exceptional depravity on the part of the respondent ...”
Both parties filed their written submissions in court. I have read and have given careful consideration to those submissions. In my view the Petitioner does raise a prima facie case of exceptional hardship. The three (3) year period provided for in Section 6(1) was to allow the couple a chance to have a stab at marital life. However in such a case as this where the problems begin even before marital life has started then the courts will not compel parties to live together in misery for three (3) years. I am persuaded that this application has merit. I do allow the Petitioner to file a Petition for Divorce notwithstanding the fact that three (3) years have not elapsed since the date of the marriage. Each party to meet their own costs for this application.
Dated and Delivered in Mombasa this 27th day of November 2012.
M. ODERO
JUDGE
In the presence of:
Mr. Odera holding brief for Ms. Osino for Respondent