A B H v E H [2018] KECA 412 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a foreigner's divorce petition because living in Kenya on holidays is not the same as being legally domiciled here.
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 appeal as presented is properly before this Court, given that no leave to appeal was obtained
- 2.Whether the trial court had jurisdiction to determine the divorce petition in view of section 4 of the Matrimonial Causes Act, in particular whether the petitioner was domiciled in Kenya at the time of presenting the petition
- 3.Whether the learned Judge misdirected herself in applying section 98(2) of the Marriage Act 2014 to the proceedings
Key legal issues
#Whether leave to appeal was required for the appeal against the dismissal of the preliminary objection
Leave was unnecessary; section 38 of the Matrimonial Causes Act allows appeals from all orders in proceedings under the Act as if they were orders in the exercise of civil jurisdiction, and section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules do not apply to matters under the Act.
The Court examined section 75 of the Civil Procedure Act and found that it enumerates appealable orders only in respect of the Civil Procedure Act itself and other statutes such as the Arbitration Act, with no reference to appeals arising under the Matrimonial Causes Act. Since section 75 did not apply, Order 43 Rule 1, which lists orders appealable as of right under section 75(1)(h), equally did not apply. Section 38 of the Act therefore governed, imposing no leave requirement on an intending appellant.
Whether the High Court had jurisdiction over the divorce petition under section 4 of the Matrimonial Causes Act
The High Court lacked jurisdiction. Once the petitioner abandoned his claim for division of matrimonial property, the petition converted from a section 4(b) petition (usual residence plus other relief) to a section 4(a) petition requiring domicile, and the petitioner failed to discharge the heavy burden of proving he had acquired a Kenyan domicile of choice.
The petitioner, a Swiss national living in Spain, was in Kenya on a three-month tourist visa at the time of filing and admitted he always came to Kenya as a visitor. The Nyali house was in the appellant's name and used only as a winter holiday home. Domicile requires actual residence coupled with animus manendi - an intention of permanency - proved with perfect clearness. His acquisition of EU registration in Spain and purchase of property there showed Spain as his domicile of choice. He may have had a usual residence but not domicile, and having abandoned the property claim he could not rely on section 4(b).
Whether section 98(2) of the Marriage Act 2014 could apply to the proceedings
Section 98(2) of the Marriage Act 2014 could not be applied to the detriment of the appellant, since the petition had converted to a section 4(a) petition before the Act came into force, and new legislation does not defeat accrued rights.
The Court held that the petition's character had changed from a section 4(b) to a section 4(a) petition by the time the Marriage Act 2014 came into operation on 20th May, 2014. The presumption against retrospectivity meant the new statute could not be applied so as to take away an accrued right or cause of action or work to the prejudice of a party.
Legal principles established
#- A petitioner seeking only a decree of dissolution of marriage under the repealed Matrimonial Causes Act must prove domicile in Kenya at the time of presenting the petition; if no other relief is sought, the 'usual residence' gateway in section 4(b) is unavailable because its two requirements are conjunctive.
- The burden of proving acquisition of a domicile of choice in substitution for the domicile of origin is a heavy one, demanding a high standard of proof, and rests on the party asserting the change.
- Residence alone, even prolonged or repeated residence, does not constitute domicile; there must be a clear intention to make the new domicile permanent.
- The coming into force of a new statute does not take away an accrued right or cause of action from a party.
- An appeal from an order in matrimonial proceedings under the repealed Matrimonial Causes Act lies as of right under section 38 of that Act; the leave requirement in section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules does not apply to such appeals.
Court orders
#- 1.The appeal is allowed
- 2.The impugned Ruling of the High Court dated 5th September, 2014 is set aside
- 3.In substitution, the Preliminary Objection dated 15th September, 2011 is allowed
- 4.The petition dated 21st January, 2011 is struck out
- 5.Each party bears its own costs here and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HC Matrimonial Cause No. 4 of 2011
- Jurisdiction invoked
- First appeal under section 38 of the Matrimonial Causes Act (appeal as of right from orders in proceedings under the Act, without the leave required by section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules)
Relief refused
#Costs to the appellant
The Court declined to award costs given the circumstances and that the petition was never determined on its merits
Costs
Each party to bear its own costs here and in the High Court.
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.
The burden of proving change or acquisition of domicile is a heavy one and whoever alleges must prove.
There must be an intention to make the new domicile permanent. This is what distinguishes domicile from ‘usual residence’.
The coming into force of a new Act (law) does not take away an accrued right or cause of action from a party.
For the foregoing reasons, we are persuaded that the appellant’s appeal has merit. We allow it with orders that the impugned Ruling dated 5th September, 2014 is hereby set aside.
In its place we substitute therefor an order allowing the Preliminary Objection dated 15 th September, 2011 with the result that the petition dated 21 st January, 2011 is hereby struck out
Issues in the judgment
#Apparent drafting error in the paragraph addressing domicile: the sentence states the 'appellant' placed insufficient evidence to prove that 'he' made Kenya his domicile of choice, but the party asserting domicile is the respondent (the petitioner), and the finding as finally framed is that the respondent did not discharge the burden.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A B H v E H [2018] KECA 412 (KLR)", Case Analysis (2018). Civil Appeal No. 56 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/412/eng@2018-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.