[2015] KEHC 2607 (KLR)
Section 6 of the Civil Procedure Act only bars Kenyan courts from proceeding with a suit where the same matter is pending before another Kenyan court, not a foreign court. The proceedings in Italy are before a foreign court and therefore do not trigger the sub judice rule under Kenyan law. The explanation to section...
Source-derived case information.
- Citation
- [2015] KEHC 2607 (KLR)
- Parties
- Petitioner: M M; Respondent: N M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 25 September 2015
- Case Number
- Divorce Cause 88 of 2014
- Procedural Posture
- Divorce Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; petition to proceed to full trial
- Judges
- DN Musyoka
- Legal Topics
- Divorce Petitions, Jurisdiction of Kenyan Courts, Sub Judice Rule, Foreign Proceedings
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
M M
Petitioner
N M
Respondent
Procedural Posture
Divorce Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the pendency of divorce proceedings in a foreign court (Italy) renders the Kenyan divorce cause sub judice under section 6 of the Civil Procedure Act.
- 2 Whether the Kenyan court has jurisdiction to hear and determine the divorce petition despite similar proceedings in Italy.
Ratio Decidendi
Section 6 of the Civil Procedure Act only bars Kenyan courts from proceeding with a suit where the same matter is pending before another Kenyan court, not a foreign court. The proceedings in Italy are before a foreign court and therefore do not trigger the sub judice rule under Kenyan law. The explanation to section 6 expressly provides that the pendency of a suit in a foreign court does not preclude a Kenyan court from hearing a suit involving the same issues. Consequently, the preliminary objection based on sub judice is without merit and is overruled. The Kenyan court retains jurisdiction to hear and determine the divorce petition.
Court Disposition
preliminary objection overruled; petition to proceed to full trial
Orders
- The preliminary objection is overruled.
- The petition shall proceed to full trial.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 88 OF 2014
M M ………………………......……….…………….PETITIONER
-VERSUS-
N M …………………..…………..……………….RESPONDENT
RULING
1. The respondent has raised a preliminary objection to the petition herein dated 22nd April 2014. The objection is stated in a notice dated 24th February 2015. It is argued that the issues raised in the instant cause are also the subject matter in another cause in Italy, being R.G.A.C. 919 of 2013 at the High Courts of Sulmona, which was instituted by the respondent herein in May 2013. It is averred that the current suit is therefore sub judice. It is also argued that the instant cause is bad in law and is an abuse of the court process and the same should be struck out.
2. When the cause came up for full hearing on 16th April 2015, I directed that the preliminary objection be disposed of first.
3. Counsel for the respondent cited the provisions of section 6 of the Civil Procedure Act, Cap. 21, Laws of Kenya,which say that:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
4. She contended that the issues in dispute in this cause are materially the same as those in the cause before the Sulmona court in Italy.
5. On his part, counsel for the petitioner argued that the proceedings in Italy were different from the instant proceedings to the extent that what was sought from the Sulmona court was judicial separation, and not divorce. He stated that the alleged matrimonial offences that gave rise to the cause were committed in Kenya, and the Kenyan courts should therefore have the jurisdiction to deal with the matter.
6. Section 6 specifically addresses proceedings pending before courts in Kenya, it does not deal with proceedings that may be pending elsewhere. The proceedings referred to by the respondent are in a foreign jurisdiction, and therefore section 6 does not apply in the circumstances. The fact that there is a suit pending in the foreign jurisdiction named raising materially the same issues as the instant cause is therefore not a bar to this court to hearing and determining the present matter.
7. The explanation note to Section 6 of the Civil Procedure Act states as follows:
“The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.”
8. In view of everything stated above, the objection raised cannot possibly have any merit. It is accordingly hereby overruled. The petition herein should proceed to full trial.
DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF SEPTEMBER, 2015.
W. MUSYOKA
JUDGE