CMW v FWJL [2002] KEHC 1133 (KLR)

Facts

Petitioner seeks alimony pending suit in the sum of KSh.60,000/- per month and orders for the Respondent to secure and make available the matrimonial apartment at Simba Paradise on Plot Number 372 Diani Beach for the exclusive occupation of the Petitioner and her children.

Issues

1. Whether the application is brought under Rule 3(1) of the Matrimonial Causes Rules
2. Whether the application should have been by Notice of Motion and not by Chamber Summons
3. Whether the application is incompetent and does not lie
4. Whether the application offends clear provisions of Statute and Rules
5. Whether the application is based on Sections 25 and 26 of the Matrimonial Causes Act
6. Whether the application for alimony pedente lite falls under the exceptions under Rule 3(2) (a)
7. Whether the age of the children referred to in the application as children are no longer children under the act

Reasoning

The application is based on Sections 25 and 26 of the Matrimonial Causes Act, and alimony pending suit can be granted before decree nisi is issued. The omission to issue notice requiring Affidavit of means to be filed or omission to validly issue a notice under Form 5 of the Affidavit cannot be put right without the Applicant going back to the “drawing Board.”

Outcome

Application struck out with costs to the Respondent

Authorities cited