Kosamu v. Mwakalinga Civ. Rev. 2-D-71; 9/2/71; Biron J.

 

Kosamu v. Mwakalinga Civ. Rev. 2-D-71; 9/2/71; Biron J.

            In a matrimonial cause initiated by the wife for maintenance of herself and two children the respondent/husband was recorded as saying: “I have already got married to another woman. I agree to this divorce application be made.” The wife did not say anything, but the court proceeded to grant a decree nisi for divorce noting that this was with the consent of the respondent husband “who has requested for the grant of this application for divorce”.

                        Held: (1) “As noted, the petitioning wife did not utter a single word at the purported hearing of her petition. And in her petition she does not even ask for a divorce, but prays only for maintenance for herself and the two children of the marriage. There, therefore, was not even any prayer for divorce, let alone consent by her for one.” (2) “Although by Rule 5 of the Matrimonial Causes (Amendment) Rules 1958 Rule 70(1) was amended as follows: “These Rules shall not apply to proceedings relating to marriages between Africans. The procedure in such proceedings shall be that applicable in civil proceedings in Subordinate Courts, with such modification as may be necessary to comply with the provisions of the Ordinance or as the circumstances may require.” The irregularities in this case are so serious and incurable that they are fatal to the order made by the court, which cannot be sustained. (3) Decree nisi set aside. Petition to be re-heard in accordance with proper procedure