[2001] KEHC 140 (KLR)
The court found that the petition was filed in clear contravention of Section 6(1) of the Matrimonial Causes Act, which requires that no petition for divorce be presented within three years of marriage unless leave of the court is first obtained. The petitioner failed to seek or obtain such leave. The court rejected...
Source-derived case information.
- Citation
- [2001] KEHC 140 (KLR)
- Parties
- Petitioner: P M; Respondent: F M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 5 of 2001
- Procedural Posture
- Divorce Cause / Ruling on Preliminary Objection
- Outcome
- petition struck out with costs
- Legal Topics
- Divorce Petition, Matrimonial Causes Act, Preliminary Objection, Statutory Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P M
Petitioner
F M M
Respondent
Procedural Posture
Divorce Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the petition was filed in contravention of Section 6(1) of the Matrimonial Causes Act and Rules.
- 2 Whether leave of the court was required and obtained before filing the petition within three years of marriage.
- 3 Whether the petition is competent in light of statutory requirements.
Ratio Decidendi
The court found that the petition was filed in clear contravention of Section 6(1) of the Matrimonial Causes Act, which requires that no petition for divorce be presented within three years of marriage unless leave of the court is first obtained. The petitioner failed to seek or obtain such leave. The court rejected arguments for a purposive or relaxed interpretation of the provision, holding that the statutory language is mandatory and unambiguous. As a result, the petition was found to be incompetent and was struck out with costs.
Court Disposition
petition struck out with costs
Orders
- The preliminary objection is upheld.
- The petition is struck out as incompetent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI MILIMNAI LAW COURTS
DIVORCE CAUSE NO. 5 OF 2001
P M ..................................................... PETITIONER
V E R S U S
F M M ................................................. RESPONDENT
R U L I N G
I have before me an application to determine the validity of the petition filed in contravention of Section 6 (1) of the Matrimonial Causes Rules.
The point was argued in limine and by consent of both the counsel.
The facts are not in dispute. The parties celebrated a marriage under Muslim Law on 16th July, 1962. Thereafter the said marriage was converted into the marriage under the marriage Act which stipulates a monogamous marriage. Mr. Musyoka conceds that the marriage in subsistence is under the Marriage Act and that the provisions of the Matrimonial Causes Act apply to the marriage between the parties. He also argues that the petition is filed before the completion of three years of marriage which was ceremonised on 24th July, 1999. He also argues that no leave as stipulated under the proviso to Section 6 (1) of the Act and Rule 2 of the Rules is applied for or granted.
What is contended by Mr. Musyoka is that the court should look into the rationale behind enactment of the provisions of Section 6 which according to him was to deter or discourage the newly married couple to rush to seek divorce. The parties are married since 1997 and thus so far as this marriage is concerned the court should not rely on the provisions of Section 6 or interpret the same strictly.
If I take up that rationale further then also I cannot agree with Mr. Musyoka as the parties have agreed or vowed to enter into a monogamous marriage as against the vagaries of polygamous marriage. The stability and expectation of the new marriage also should not be snapped by the parties without following the proposed rationale of the provision.
Be that as it may, what I have before me is a very clear and absolutely unambiguous provision of Law clothed in a mandatory language and which gives the party recourse to overcome the mandatory nature thereof.
The petitioner has not bothered to follow the provisions of the said law and cannot expect this court to grant him a nod of approval.
I therefore uphold the preliminary objection and find that the petition as filed is incompetent and is therefore struck out with costs.
Dated and delivered at Nairobi this 29th day of January, 2001.
K. H. RAWAL
J U D G E