The Divorce Process in Kenya

Kenya Divorce: Complete Guide to Filing & Documents Needed (2024 Update)

A suit for dissolution or annulment of a marriage is commenced by filing a petition. The petition can be drafted by an individual (if they do not have the finances to procure an advocate’s services) or a procured advocate. The subsequent sections outline the divorce process in Kenya.

Drafting and Filing a Divorce Petition

• It is the first step of dissolving a marriage, where a disgruntled spouse petition to the family court to have the marriage with their spouse terminated on either ground of desertion, adultery, cruelty, or irretrievably breakdown.
• The petition should provide details such as: –
• the names of the parties;
• the date and the place of the marriage;
• the address of the parties involved;
• any living child(ren) of the marriage with their birth dates;
• details of any previous proceedings regarding the marriage, providing the dates of such proceedings and the applicable decrees/ outcomes.
• the alleged matrimonial offence, or other grounds on which the relief is sought, setting out with sufficient particularity in separate paragraphs the individual facts relied on, other than the evidence by which they are proved;
• the reliefs sought from the court, which may include; –
  • the dissolution/annulment of marriage;
  • prayers of nay costs sought;
  • restraining orders where a spouse is molesting another; and
  • restitution of conjugal rights; among other reliefs. N.B Issues of custody and maintenance of children are dealt with by the Children’s court subject to the provisions of the Children Act, 2022.
• The petition should be signed by the petitioner and, in case of a minor or a person of mental unsoundness, a next of kin.

Documents that accompany a divorce petition

• A marriage petition must be accompanied by the following documents; –

1. A verifying Affidavit: It verifies that the petitioner has material knowledge of the facts deponed and the honesty/veracity of the deponed facts.
2. A copy of the certificate of marriage
3. A list of witnesses if any
4. A list of documents e.g., birth certificates of the children, and reconciliation certificate.
5. Written witness(es) statements.

Where a petitioner seeks ancillary reliefs from the court, they can file a notice of motion at any stage of the proceedings. Once the divorce petition and the accompanying documents have been filed in the court, the court signs a notice to appear.

Notice to Appear

• A notice to appear is served upon the respondents, informing them that a divorce petition has been filed and they need to enter an appearance either on themselves or through an advocate within fourteen (14) days.
• The notice should be accompanied by the petition or any other ancillary application.
• Once the petitioner or their advocate serves the respondent, they should file an affidavit of service as proof of the service.

Respondent’s Response and Cross-petition

• After the respondent is served and enters an appearance, they should file a response to the petition within fifteen (15) days.
• The response beyond denying the facts given in the petition should contain the statements of facts relied on their denial.
• A response should be accompanied by; –
  • A verifying affidavit verifying that the matters deponed are within respondent’s knowledge and the veracity of the deponed facts;
  • A list of witnesses if any;
  • Witnesses’ statements if any; and,
  • A list of any relied documents.
• A respondent’s response may also contain cross-petition that should include all the elements listed of a petition.
• The response and the cross-petition should be served upon the petitioner or their advocate.

Certificate of Compliance

• After the close of the pleadings (where both parties have filed all their documents) the petitioner may apply for a certificate of compliance, previously referred as a registrar certificate.
• The certificate of compliance merely verifies that all pleadings, service, witnesses’ statements etc., have been duly acted upon and the petition is ready for hearing.
• An application for the certificate of compliance is done via a notice of motion supported by a sworn supporting statement.

Setting the petition for hearing.

• Where a certificate of compliance has been issued, the matter proceeds to the most critical part, which is the hearing.
• During the hearing, the petitioner or their advocate adduces evidence of the irretrievably broken marriage and the fact that there is nothing to salvage.
• The respondent will also have an opportunity to support their response and/or cross-petition.
• After the hearing, the court schedule the judgment date/ decree

Decree Nisi

• The court on being compelled that the marriage has irretrievably broken and there is no way the parties can be expected to live together, issues a decree nisi.
• A decree nisi does not dissolve that marriage but merely acknowledges the broken nature of the marriage and accords an opportunity to the parties to examine if they truly want to dissolve the marriage.

Decree Absolute

• After the expiry of 4-6 weeks, the court, upon application and payment of the relevant fees, issue the decree absolute.
• A decree absolute fully dissolves the marriage between the parties, and they are deemed to have never married.
• Only after the decree absolute is granted can the parties remarry.
• The Magistrate, on issuing a decree absolute, should send a certified copy to the Registrar, who insert the nature of the proceedings, the date on which the marriage was dissolved and the date on which the decree absolute was issued into the marriage register.

A party dissatisfied with the Magistrate’s decision regarding the divorce petition appeals to the High Court within 30 days of such order. An appeal to the High Court, unless the court otherwise orders on application by the appellant, act as a stay of such order or decision.