Did
you know that if both you and your spouse live and work abroad, you cannot
bring family disputes such as divorce before Kenyan courts? A Kenyan woman
residing in the United States learnt this lesson the hard way after her divorce
petition was dismissed by two Kisumu courts on grounds of lack of jurisdiction.
AAO had petitioned a magistrate court on May 21 last year seeking a divorce from her estranged husband, NOO, citing cruelty and adultery.
However, the husband raised a preliminary objection, arguing that the Kenyan courts lacked territorial jurisdiction since both parties resided and worked in the US.
On September 11 last year the trial court upheld this objection and struck out the petition, ruling it could not entertain the matter.
Dissatisfied, she appealed the ruling at the High Court, asserting that the trial court erred by equating domicile with residence, and that the issue of jurisdiction involved disputed facts that required full examination rather than a preliminary dismissal.
Domicile refers to the country a person treats as their permanent home and intends to reside in indefinitely.
She further argued that the court had incorrectly relied on Section 67 of the Marriage Act, 2014, without considering broader Kenyan legal principles on matrimonial jurisdiction.
The appeal was considered on written submissions.
The woman argued that the issue of domicile was not a point of law to be resolved as a preliminary point as the issue is a mixed question of law and fact that can only be adequately determined through oral evidence and cross-examination in the substantive suit.
Her estranged husband argued that domicile and residence are closely related concepts often overlapping in matrimonial law and that courts have established that Kenyan courts may only exercise matrimonial jurisdiction where at least one of the parties is domiciled within Kenya.
Courts determine jurisdiction based on domicile rather than mere physical presence or residence. The Kenyan Marriage Act provides limited guidance but recognises the importance of domicile in matrimonial jurisdiction.
In this case, both parties admitted they had been living and working in the US for about 10 years, effectively making the US their domicile.
The appealed decision dated July 31 tossed out the appeal, holding that the Kenyan courts can only hear divorce cases if at least one party is domiciled in Kenya, or has been ordinarily resident for a specified period. Since neither party met this criterion, the courts found they lacked jurisdiction.
The appellate court referenced precedent affirming that in personal matters like marriage, domicile is critical in determining which court has authority. The fact that the acts complained of—cruelty and adultery—occurred in the US further reinforced the decision that Kenyan courts could not intervene.
“From
the facts of this case, it is quite clear that the country of domicile for both
parties is USA. The Kenyan court will have no jurisdiction, as the acts
complained of were committed in the USA where the parties are domiciled. I
uphold the trial court’s finding that it lacked jurisdiction to entertain the
divorce petition,” the decision read.
Instant analysis:
As more Kenyans live and work abroad, this judgment sets a clear precedent that Kenyan courts cannot adjudicate family matters where neither party maintains domicile within Kenya, signalling a shift towards respecting foreign jurisdiction in such cases.
