MHS v NEN (Divorce Cause E003 of 2023) [2024] KEKC 15 (KLR)
The bottom line
#Kericho Kadhis' Court set aside an ex-parte divorce judgment because the wife was never properly served and the husband's affidavit was invalid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex-parte judgment dated 31st May 2023 and the consequential decree should be set aside
- 2.Whether the Applicant was duly served and notified of the Petition against her before the Court
- 3.Whether the Applicant should be granted leave to file and serve her Answer to the Petition and Cross Petition out of time
Key legal issues
#Whether the Applicant was duly served and notified of the Petition before the ex-parte hearing
She was not: the file contained neither a copy of summons nor an affidavit of service, so the Applicant was unaware of the Petition and was denied her constitutional right to a fair hearing under Article 50.
The court perused the file for documents filed before the ex-parte judgment and found that the summons required by Order 5 rule 1(5) of the Civil Procedure Rules was missing, and that no affidavit of service in the form required by rule 15(1) had been filed. This raised the possibility that the Applicant was never served with the summons and Petition, denying her the opportunity to be heard guaranteed by Article 50 of the Constitution.
Whether the Petition met the legal requirements for hearing
It did not: the Petitioner's Supporting Affidavit was not commissioned, contrary to section 5 of the Oaths and Statutory Declaration Act.
Beyond the failure of service, the court examined the Petition papers and found that the Petitioner's Supporting Affidavit was uncommissioned. Relying on In re MWO (Minor) and Mary Gathoni & another v Frida Ariri Otolo & another, an affidavit must be commissioned by a Magistrate, Commissioner of Oaths or Notary Public; an uncommissioned affidavit is not on oath and is not an affidavit at all. The Petition therefore did not meet statutory requirements before its hearing and determination.
The importance of hearing both parties before deciding a case
Deciding a case before hearing from both parties is prohibited; service accords a party the opportunity to be heard and enables the court to properly understand the matter.
The court invoked Islamic jurisprudential authority - the counsel of the Prophet (PBUH) to Ali Ibn Abi Twalib when appointing him a judge in Yemen, and the writings of Ibn Qudaamah - to underscore that a judge must hear the second party as he heard the first, because the absent party may possess evidence to rebut that of the party present. This is reinforced by Article 50 of the Constitution and section 20 of the Civil Procedure Act.
Legal principles established
#- An uncommissioned affidavit is not a valid affidavit; it is a legal requirement that an affidavit be commissioned by a Magistrate, Commissioner of Oaths or Notary Public.
- Service of summons and the petition is a precondition to hearing; a party not served is denied the constitutional right to a fair hearing.
Court orders
#- 1.The ex-parte judgment and consequential decree on record against the Applicant, together with all consequential and subsequent Orders, Notices and other processes issued or made in execution of the aforesaid decree are set aside
- 2.The Petitioner/Respondent is given one (1) month from the date of the Ruling to properly file his Petition and serve the Respondent, failing which the Petition shall be null and void
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Kadhis' Court under Rule 1A, 1B, 3A & 63(e) of the Civil Procedure Act and Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules; Article 50 of the Constitution of Kenya 2010
Relief refused
#Deeming of the draft Answer to Petition and Cross Petition as duly filed and served
The court instead directed the Petitioner to properly file the Petition afresh, rendering a deemed filing of the Answer unnecessary; leave to answer out of time was effectively subsumed in the setting aside order
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the ex-parte judgment and consequential decree then on record against the Applicant herein, together with all consequential and subsequent Orders, Notices and other processes issued or made in execution of the aforesaid decree are hereby set aside.
That the Petitioner/Respondent is hereby given one (1) month from the date of this Ruling to properly file his Petition and serve the Respondent failure to that shall render the Petition null and void.
no copy of Afidavit of Service was filed and thus leading to a possibility that the Respondent/Applicant herein was not served with summons together with the Petition and thus was not aware of the Petition against her.
The wisdom behind serving and notifying a party on a case before a court of law is to accord the party an opportunity to be heard and enable the Court to understand properly the matter before it.
I also found out that no copy of Afidavit of Service was filed
Issues in the judgment
#The judgment mislabels itself inconsistently - the Applicant's prayers seek review/setting aside of a judgment, and the operative paragraph calls the document a 'Ruling' rather than a judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MHS v NEN (Divorce Cause E003 of 2023) [2024] KEKC 15 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 15th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2024/15/eng@2024-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.