[2016] KEHC 3847 (KLR)
The court found that the petition for divorce failed to comply with mandatory procedural requirements under the Matrimonial Causes Rules by omitting the principal permanent address of cohabitation, the occupation of the petitioner, and necessary statements in the verifying affidavit regarding personal knowledge and...
Source-derived case information.
- Citation
- [2016] KEHC 3847 (KLR)
- Parties
- Applicant: S S L; Respondent: S K B
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 60 of 2013
- Procedural Posture
- Divorce Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; petition not struck out but to be amended
- Judges
- LA Achode
- Legal Topics
- Matrimonial Causes Rules, Divorce Petition Requirements, Preliminary Objection, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S S L
Applicant
S K B
Respondent
Procedural Posture
Divorce Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the petition for divorce complied with the mandatory requirements of the Matrimonial Causes Rules.
- 2 Whether failure to state principal permanent address, occupation, and required affidavit particulars is fatal to the petition or curable by amendment.
Ratio Decidendi
The court found that the petition for divorce failed to comply with mandatory procedural requirements under the Matrimonial Causes Rules by omitting the principal permanent address of cohabitation, the occupation of the petitioner, and necessary statements in the verifying affidavit regarding personal knowledge and condonation of cruelty. However, the court held that these defects were curable by amendment and the filing of a supplementary affidavit, rather than warranting the striking out of the petition. The court relied on Article 159(2)(b) and (d) of the Constitution, which mandates the administration of justice without undue regard to procedural technicalities, and thus ordered that...
Court Disposition
preliminary objection upheld; petition not struck out but to be amended
Orders
- The petition shall be amended to provide the missing information required by the Matrimonial Causes Rules.
- A supplementary affidavit shall be filed to bring the pleadings into conformity with the law.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 60 OF 2013
BETWEEN
S S L……………………PETITIONER
AND
S K B …………………RESPONDENT
RULING
The Petitioner S S L filed a petition dated 22nd March, 2013 seeking the dissolution of the marriage celebrated between him and the Respondent, on 21st December 2008 at the Siri Gurdwara Ramgarhia Railway Temple, Nairobi. Upon being served the Respondent, brought a Notice of Preliminary Objection dated 13th May 2013 in which she seeks to have the Petition dated 22nd March 2013 struck out for offending the Matrimonial Causes Rules.
The Preliminary Objection is predicated on grounds thatRules 4(1) (b) and (d)andRules 6(1)and(2) have not been complied with. The Respondent states that there was no principal permanent address where the parties cohabited within Kenya provided and the occupation of the Petitioner/husband has not been stated. Further, that the Petitioner’s verifying affidavit makes no statement in respect of verifying the facts of which the deponent has personal support, or cognizance and deposing as to belief in the truth of the other facts alleged in the petition. Lastly, that the affidavit fails to state that since the ground of divorce is cruelty amongst others, he has not in any manner condoned the cruelty.
UnderRules 4(1) (b)and(d)of theMatrimonial Causes Rules the petition in a matrimonial cause shall state the principal permanent addresses where the parties have cohabited within Kenya or, if it is the case, that there has been no address of cohabitation within Kenya. The Petition shall further state the occupation of the husband and the residence and domicile of the parties to the marriage at the date of the institution of the cause.
Rule 6 (2) of the same Rules requires that there should be filed with every petition an affidavit by the petitioner, verifying the facts of which the deponent has personal cognizance and deposing as to belief in the truth of the other facts alleged in the petition and, except in the case of a petition for restitution of conjugal rights, stating whether the petition is presented or prosecuted in collusion with the respondent or any of the co-respondents.
In particularRule 6(2) (a)requires the affidavit to also state, in the case of every petition for divorce or judicial separation, where the ground of the petition is adultery, whether the petitioner has in any manner been accessory to or connived at or condoned the adultery, and, where the ground of the petition is cruelty, whether the petitioner has in any manner condoned the cruelty.
Mr. Desai is therefore correct in raising this Preliminary objection. I find however that the failure on the part of the Petitioner to comply with the foregoing provision is curable by amending the petition to provide the missing information and by the filing of a supplementary affidavit rather than striking out the petition. In so holding I am guided by the principles in Article 159(2) (b)and(d)of theConstitution which enjoin the court to administer justice to all without delay and without undue regard to procedural technicalities.
The Preliminary Objection is therefore upheld, with orders that the Petition be amended appropriately and that a supplementary affidavit be filed to bring the pleadings in conformity with the law.
SIGNED DATEDandDELIVEREDin open court this 28th day of July 2016
L. A. ACHODE
JUDGE
In the presence of ……………………Advocate for the Petitioner
In the presence of ……………………Advocate for the Respondent