[2008] KEHC 2518 (KLR)
The court found that the petition for divorce was filed only 1 year and 4 months after the date of marriage, contrary to Section 6(1) of the Matrimonial Causes Act, which prohibits filing for divorce within three years of marriage unless leave of court is obtained for exceptional hardship or depravity. There was no...
Source-derived case information.
- Citation
- [2008] KEHC 2518 (KLR)
- Parties
- Applicant: Suleiman Said Sarai; Respondent: Collette Marie Josephe Dreano
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause NO. of 1953
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition struck out as premature and incompetent
- Legal Topics
- Divorce Petition, Matrimonial Causes Act, Marriage Dissolution, Statutory Time Bar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Said Sarai
Applicant
Collette Marie Josephe Dreano
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the petition for divorce was filed in compliance with the statutory time restriction under the Matrimonial Causes Act.
- 2 Whether the court can entertain a divorce petition presented before three years have elapsed since the date of marriage without leave of court.
Ratio Decidendi
The court found that the petition for divorce was filed only 1 year and 4 months after the date of marriage, contrary to Section 6(1) of the Matrimonial Causes Act, which prohibits filing for divorce within three years of marriage unless leave of court is obtained for exceptional hardship or depravity. There was no evidence that such leave had been sought or granted. Consequently, the court held that the petition was premature and incompetent, and therefore struck it out. No order as to costs was made.
Court Disposition
petition struck out as premature and incompetent
Orders
- The divorce petition is struck out as premature and incompetent.
- There is no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
DIVORCE CAUSE NO. 53 OF 2006
SULEIMAN SAID SARAI …………………………….……. PETITIONER
V E R S U S
COLLETTE MARIE JOSEPHE DREANO ………….….. RESPONDENT
J U D G M E N T
This divorce petition was filed in court on 23rd October, 2006. The petitioner seeks two orders:-
(a) That the marriage between the petitioner and the Respondent be officially dissolved.
(b) That the costs of the petition be awarded.
The petitioner’s case is that he married the respondent in the Registrar’s office, Mombasa, on 8th June, 2005. Thereafter the couple went to France and the Respondent’s family did not approve the marriage. The couple then returned to Kenya and serious misunderstandings between the spouses led to a separation on 6th March, 2006. Since then, they have been living separately and there is no prospect of reconciliation. On those grounds, it is the petitioner’s case that the marriage has irretrievably broken down and that it should be dissolved. There is no issue of the marriage.
Without going to the merits of the petition, it is clear that the marriage between the parties was solemnized in the Registrar’s Office, Mombasa, on 8th June, 2005. A certified copy of an entry of marriage in respect thereof is attached to the petition, but its serial number is incomplete.
No doubt this marriage was contracted under the Marriage Act, Cap 151 of the Laws of Kenya on 8th June, 2005. The petition for divorce was filed in court on 23rd October, 2006. That was 1 year and 4 months after the date of the marriage. Section 6(1) of the Matrimonial Causes Act imposes a restriction on petitions for divorce during the first three years of marriage. It states as follows:-
“No petition for divorce shall be presented to the court unless at the date of the presentation of the petition three years have passed since the date of marriage.
Provided that a Judge of the court may, upon application being made to him in accordance with rules made under this Act, allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent …”
This petition was presented to the court before three years had passed since the date of the marriage. There is no evidence that any application was made in court and allowed for this to be done before three years had passed. In the circumstances, this petition is premature and, therefore, incompetent. It is accordingly struck out with no order as to costs.
It is so ordered.
Dated and delivered at Mombasa this 9th day of May, 2008.
L. NJAGI
JUDGE