GMJ v MNJ [2015] KEHC 2622 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

DIVORCE CAUSE NO. 190 OF 2014

BETWEEN

GMJ…………………………..…..………..PETITIONER

AND

MNJ…………………………….....……..RESPONDENT

R U L I N G

The petition herein came up for hearing on 15th January 2015 as an undefended cause. The petitioner testified and I reserved judgement for 13th March 2015. On account of several factors of a personal nature, I was unable to render judgement on the appointed date.

In the course of preparing judgement in the matter, I noted from the record that the petition herein was filed in court on 15th September 2014. Notice to Appear for service on the respondent was issued by the court on 18th September 2014 and was collected from the court registry on 24th September 2014 by a certain Risper, who I presume to has an officer from the chambers of the advocates acting for the petitioner. The notice required the respondent to enter appearance within fifteen days upon service, in default of which the court would proceed to hear the matter her absence notwithstanding.

There is an affidavit of service on record, sworn on 9th October 2014 by one Risper Kafu and filed herein the same day, which indicates that the respondent was served on 29th September 2014 at her residence at Kitisuru, Nairobi, and that she acknowledged service by signing on the reverse side of the Notice to Appear. The copy of the Notice allegedly signed by the respondent has not been returned to court for it is not attached to the affidavit of service. Technically therefore there is no return of service.

The petitioner moved the court on 16th October 2014 by a summons in chamber of even date for the registrar’s certificate that the pleadings were in order and that the cause be cleared to proceed as undefended. The said application was filed just two days after expiry of the fifteen days’ notice.

The respondent did not enter appearance as required by the notice served on her, instead her advocates filed a notice of appointment on 22nd October 2014.

The application dated 16th October 2014 was served on the advocates for the respondent on 23rd October 2014, showing that the same was to come up for hearing on 6th November 2014. There is an affidavit of service to that effect sworn on 27th October 2014 and filed herein on 31st October 2014. There is also a copy on record of the said application bearing a stamp of the said advocates, Oluoch-Olunya & Associates, Advocates, acknowledging receipt under protest.

On 31st October 2014 the respondent filed answer to the petition and cross-petition dated 28th October 2014.

The application dated 16th October 2014 came up for hearing on 6th November 2014. Neither the respondent nor his counsel attended court and directions were given in their absence. The matter was cleared to proceed as an undefended cause.

The record reflects that as at the 6th of November 2014 when the matter came up for the registrar’s certificate there was an answer to the petition and a cross-petition on record. The cause was therefore not undefended and the same ought not to have been cleared to proceed as undefended. The pleadings were on record and ought not to have been overlooked.

There might have been a delay on the part of the respondent in filing her papers, but the delay was for a few days. The cause opened on 15th September 2014, she was served on 29th September and her initial filing was on 22nd October 2014. Quite clearly the delay on her part cannot be said to have been inordinate. There might have been an error in that she did not file appearance but file a notice of appointment of advocates instead, but that was an error that was curable.

I have anxiously considered the circumstances herein, and I am of the opinion that it would be grossly unjust to lock out the respondent from the proceedings after she had filed her pleadings before pleadings closed.

I will therefore, in exercise of the inherent powers of the court, not prepare the judgement herein, instead I shall set aside the proceedings that were conducted on 15th January 2015, review the directions given on 6th November 2014 and direct that the matter  herein proceeds to hearing as a defended cause. The matter shall be heard on a date to be given at the registry.

DATED, SIGNED and DELIVERED at NAIROBI this 25TH  DAY OF SEPTEMBER, 2015.

W. MUSYOKA

JUDGE

In the presence of ……………………….. for the petitioner.

In the presence of ……………………… for the respondent.