[2017] KEHC 954 (KLR)

[2017] KEHC 954 (KLR)

The court found that the applicant was duly served with the relevant court documents and hearing notice, as evidenced by affidavits of service. The applicant did not provide sufficient justification for his non-attendance or demonstrate that he had an arguable defence with a probability of success. Both parties had, in fact, sought dissolution of the marriage, and there was no evidence of any attempt to reconcile since the ex parte judgment. The court determined that setting aside the judgment would serve no practical purpose, as the marriage had irretrievably broken down and both parties had moved on. Regarding maintenance and property sharing, the court affirmed its jurisdiction to...

Citation
[2017] KEHC 954 (KLR)
Parties
Respondent: M O C; Applicant: A C M
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
3 November 2017
Case Number
Divorce Cause 22 of 2012
Procedural Posture
Divorce Cause / Ruling on Application to Set Aside Ex Parte Judgment
Outcome
Application to set aside ex parte judgment dismissed; judgment amended to clarify equal sharing of rent from Kayole property.
Legal Topics
Divorce Proceedings, Matrimonial Property, Maintenance Orders, Ex Parte Judgment, Service of Process
Source Language
English
Family and Children Civil Procedure Divorce Proceedings Matrimonial Property Maintenance Orders Ex Parte Judgment Service of Process

Case Brief

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Parties

M O C

Respondent

A C M

Applicant

Procedural Posture

Divorce Cause / Ruling on Application to Set Aside Ex Parte Judgment

Legal Issues

  1. 1 Whether the ex parte judgment dissolving the marriage should be set aside for lack of service or other just cause.
  2. 2 Whether the applicant has an arguable defence with a probability of success if the judgment is set aside.
  3. 3 Whether the maintenance and property sharing orders should be varied or maintained.

Ratio Decidendi

The court found that the applicant was duly served with the relevant court documents and hearing notice, as evidenced by affidavits of service. The applicant did not provide sufficient justification for his non-attendance or demonstrate that he had an arguable defence with a probability of success. Both parties had, in fact, sought dissolution of the marriage, and there was no evidence of any attempt to reconcile since the ex parte judgment. The court determined that setting aside the judgment would serve no practical purpose, as the marriage had irretrievably broken down and both parties had moved on. Regarding maintenance and property sharing, the court affirmed its jurisdiction to...

Court Disposition

Application to set aside ex parte judgment dismissed; judgment amended to clarify equal sharing of rent from Kayole property.

Orders

  • The application to set aside the ex parte judgment of 14th November 2014 is dismissed.
  • The judgment is amended to provide that parties shall share rent from the Kayole property equally until division of matrimonial property is finalized.