CMW v FWJL

High Court, at Mombasa

December 20, 2002

Otieno J

Divorce Cause No 32 of 2001

Civil Practice and Procedure – matrimonial causes – application for alimony pending suit and for availing of matrimonial home – form of such application – whether such application can be properly brought by Chamber Summons–– failure to serve a notice to appear and notice requiring an affidavit of means – effect of such failure – Matrimonial Causes Rules rule 3, 7

Family Law – child – meaning of child - definition of child under the Matrimonial Causes Act (cap 152) – whether definition amended by Children Act 2001.

The applicant applied for alimony pending suit and for the availing of the matrimonial home exclusively for herself and her children pending the application. The respondent raised a preliminary objection on several points. First, that rule 3(1) of the Matrimonial Causes Rules under which the application was brought did not deal with such an interim application and that under rule 3(2)(a), the application should have been by way of Notice of Motion and not by Chamber Summons. Secondly, that after the filing of the application, the respondent did not receive any notice requiring him to produce an affidavit of means and thirdly, that the persons referred to as children in the application were not children within the meaning of the Matrimonial Causes Act (cap 152). Finally, he argued that section 25 of the Act as invoked by the application only provided for the granting of alimony after a decree nisi or decree absolute has been issued.

Held:

1. A preliminary objection should raise pure points of law which are argued on the assumption that the facts pleaded by the other side are correct. The points raised by the respondent satisfied that criteria and his preliminary objection would be considered.

2. Rule 3(3) of the Matrimonial Causes Rules which provided for the making of an application by way of Chamber Summons could only apply where rules 3(2)(a-f) do not provide for a way of commencing an application.

3. Under rule 3(2)(a) an application for alimony pending suit made where a claim for alimony is made in the original petition need not be by Notice in Form 2 of the Appendix. Such application falls under rule 3(3) for it is not otherwise provided for in rules 3(2)(a-f) and it can thus be made by summons in chambers. The applicant’s application was therefore properly brought by way of Chamber Summons.

4. The applicant’s Notice to Appear did not have the court’s date stamp and it was not a valid document as it was not even properly on the file. The applicant had not complied with rule 7(2). She had failed to serve the respondent with the notice under Form 5 in the Appendix to the Rules after filing the application and no notice had been served requiring the respondent to file an affidavit of means.

5. The applicant could not be heard to say that because the respondent had previously filed such an affidavit, no prejudice had been caused. That affidavit had been filed pursuant to the Petition and not for the purposes of the applicant’s application, and so the procedure regarding the application had not been complied with.

6. The definition of children under the Matrimonial Causes Act section 2 as males who have not attained the age of sixteen years and females who have not attained the age of thirteen years was not intended to be amended by the Children Act 2001 which defined a child as any human being under the age of eighteen years. Though the persons named in the application may not have been children under the Act, that did not affect the part of the application that related to the applicant’s own maintenance.

7. The respondent’s final point was not valid as section 25(1) of the Matrimonial Causes Act made it clear that alimony pending suit could be granted before decree nisi is issued.

8. The omission to issue a notice requiring an affidavit of means to be filed or the omission to issue a notice under Form 5 of the Appendix could not be put right without the applicant filing a fresh application.

Application struck out.

Cases

1. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

2. Rosemary Joan Williams-Meyrick v Anthony Julian (or John) Stewart Williams-Meyrick 20(2) KLR 36

3. Namukasa v Bukya [1966] EA 433

Statutes

1. Matrimonial Causes Rules (cap 152 Sub leg) rules 2(a-f), 3(1), 3(3), 7(1), 7(2), 44

2. Matrimonial Causes Act (cap 152) sections 2, 25(1), 26, 31

 3. Children Act 2001 (Act No 8 of 2001) section 200(1), Schedule 6

Advocates

Mr Kimani for the Applicant.

Mr Njoroge for the Respondent.