S W v N G K
High Court, at Eldoret February 24, 2003
Civil Appeal No 37 of 2002
(An appeal from the Judgment in Eldoret Chief Magistrate’s Court
Divorce Cause No 16 of 2001 delivered on 19th April 2002 by
Lucy Gitari Esq PM)
Civil Practice and Procedure - matrimonial causes - extension of time to file for divorce on grounds of insanity - whether pleadings may be filed out of time under the Matrimonial Causes Act (cap 152).
Family law - marriage - capacity to marry - presumption of sanity – proof of insanity of party contracting a marriage - burden of proof.
Family law - marriage - marriage contract - where it can be avoided as any civil contract - factors that may vitiate contract to marry.
Family law - custody of children - matters the court should consider – the welfare of the child - preference to be given to the mother.
The appellant appealed against an order of the Chief Magistrate’s Court which nullified her marriage to the respondent.
The appellant alleged that the petition for dissolution of marriage was defective and was filed out of time. She contended that the trial Court was wrong in granting custody of their son to the respondent and shifting the burden of proving facts to her.
The respondent on his part, averred that at the time he contracted the marriage with the appellant, he was ignorant that she suffered from recurrent fits of insanity. He disclosed that just before the wedding the appellant had suffered a bout of mental illness but her mother misrepresented to him that the seizure was a mainifestation of malaria.
The respondent thus argued that the appellant did not have the mental capacity to enter into a marriage contract.
1. Although section 14 (10) (f) of the Matrimonial Causes Act does not specifically provide for extension of time to file for divorce on grounds of insanity or recurrent fits of insanity or epilepsy, rule 20 of the Matrimonial Causes Rules makes such provision. Pleadings may be filed out of time thereunder with the leave of the Court.
2. It is trite law that all persons of lawful age are presumed to be sane. People are presumed to be capable of contracting a valid marriage until the contrary is made to appear; and if the contrary is alleged, it must be proved by the party imputing it.
3. A marriage is a civil contract which may be avoided for want of mental capacity or consent, which are essential elements for all contracts.
4. Consent for purposes of a marriage contract may be vitiated by fraud, deliberate misrepresentation or false representation of essential facts to the transaction or contract.
5. By deliberately misrepresenting to the respondent the true nature of the seizure the appellant had suffered immediately before the contract of marriage was entered into between the appellant and the respondent, the appellant’s mother obtained the respondent’s consent fraudulently and the subsequent contract became null and void for lack of consent.
6. In matters of custody of children, paramount consideration is placed on the welfare of the child.
7. In the absence of exceptional circumstances, an infant should be left in the custody of his or her mother.
1. Park, In the Estate of, Park v Park  2 All ER 1411;  2 WLR 1012;  P 112
2. Durham v Durham (1985) 10 PD 80
3. Hunter v Edney (Otherwise Hunter) (1885) 10 PD 81
4. Jemima Cole v William Cole (1857) 5 Sneed’s Ten Rep 56
5. Wambua v Okumu  EA 578
Latey, W (1952) Latey on Divorce: The Law and Practice in Divorce and Matrimonial Causes London: Sweet & Maxwell pp 193, 209 & 211
1. Matrimonial Causes Act (cap 152) section 14 (1) (f) (ii)
2. Matrimonial Causes Act 1927 [UK]
3. Matrimonial Causes Rules (cap 152 Sub Leg) rules 3, 20
4. African Christian Marriage and Divorce Act (cap 151)
Mrs Patricia Nyaundi for the Applicant