[2007] KEHC 3082 (KLR)
The court held that in the absence of any express provision in the Matrimonial Causes Act or Rules requiring a petitioner to sign the petition, the proper procedure is that the person or advocate who draws and files the petition must sign it. The court found that a petition drawn and filed by an advocate but signed...
Source-derived case information.
- Citation
- [2007] KEHC 3082 (KLR)
- Parties
- Applicant: Judith Cheptoo; Respondent: Kennedy Kiprop
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 6 of 2006
- Procedural Posture
- Divorce Cause / Ruling on Preliminary Objection
- Outcome
- Preliminary objection upheld. Costs to the respondent.
- Legal Topics
- Matrimonial Causes Procedure, Petition Signing Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Cheptoo
Applicant
Kennedy Kiprop
Respondent
Procedural Posture
Divorce Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a divorce petition must be signed by the petitioner or by the advocate who draws and files it.
- 2 Whether the absence of a Notice of Appointment of Advocate invalidates the advocate's appearance for the petitioner.
Ratio Decidendi
The court held that in the absence of any express provision in the Matrimonial Causes Act or Rules requiring a petitioner to sign the petition, the proper procedure is that the person or advocate who draws and files the petition must sign it. The court found that a petition drawn and filed by an advocate but signed by the petitioner is procedurally defective. The preliminary objection raised by the respondent was therefore upheld. The petitioner is, however, at liberty to instruct and retain an advocate for the prosecution of the petition, provided proper procedure is followed, including the filing of a Notice of Appointment of Advocate.
Court Disposition
Preliminary objection upheld. Costs to the respondent.
Orders
- The preliminary objection is upheld.
- Costs of the objection awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Divorce Cause 6 of 2006
JUDITH CHEPTOO ……………..……………… PETITIONER
VERSUS
KENNEDY KIPROP ………………………….. RESPONDENT
R U L I N G
The Petition herein was signed by the Petitioner though the Petition is said to have been drawn and filed by M/s. Chepkwony & Co. Advocates. The Respondent has filed objection to the appearance or representation by counsel for the Petitioner on the ground that no Notice of Appointment has been filed.
I have perused the Matrimonial Causes Act and Rules, and the same are silent as to whether a Petition must be signed by a Petitioner. In the Companies Act, Cap 486, a Petitioner in a Winding-Up Cause must sign the Petition under his own hand. This is specifically provided for.
In the absence of any provision I hold that a Petition signed by the Petitioner must be deemed to be one filed by the Petitioner. It is the person or advocate who draws and filed the Petition that must sign. A process cannot be drawn and filed by an Advocate and then it is signed by the client or party unless there is provision to that effect.
I therefore uphold the preliminary objection raised by Mr. Momanyi Counsel for the Respondent.
The Petitioner is of course at liberty to instruct and retain an Advocate in the prosecution of the petition. Costs of the objection to the Respondent.
DATED AND DELIVERED AT ELDORET ON THIS 16TH MARCH, 2007.
M. K. IBRAHIM
JUDGE