Court opens doors for fight on whether third parties can file divorce on behalf of a couple

A woman will prosecute a divorce case against her step-mother on behalf of her father, who is mentally ill.

The decision to allow the daughter of the man to act on his behalf in the divorce proceedings against her step-mother opens the door for a fight on whether third parties can file for divorce on behalf of an aggrieved marriage partner.

At the centre of the dispute is; given the man has been ascertained to be mentally unstable in the course of proceedings, can his daughter take over to demonstrate his complaints of cruelty and desertion against his wife?

Even before that is determined, the court will have to determine whether the case collapses on a technicality, as argued by the defendant, since at the time of filing the case, it has now been proven by doctors, the plaintiff was mentally ill.

The twin issues, the High Court and Court of Appeal have ruled, can only be determined once the application by the man’s daughter to act as the guardian is heard.

On June 17, 2014, the man had moved to court seeking dissolution of his six-year marriage, citing cruelty and desertion. The woman has denied the allegations against her.

The man, DOK, had married JEK on March 29, 2008.

However, when the matter came up for hearing on June 30, 2016, the trial court noted that the man seemed not to understand or follow the proceedings.

It emerged that he had been ailing for a long time and had even sought treatment overseas. As a result, the court directed assessment of his mental state by a competent medical practitioner.

Two doctors – GK Mulunga and C M Mwangome – did the tests and concluded that he had been suffering from diminished mental capacity since 2002.

Following that revelation, the man’s daughter, named as GYO, asked the court to substitute her father with her.

GYO argued that her father lacked mental capacity to marry in 2008, something she knew as his caretaker.

But in opposition, JEK told the court that since the man was found to be mentally unstable, he could not have filed the case in the first place.

She blamed third parties for the turmoil between her and DOK.

“The petition to dissolve a marriage could only be filed by the parties to the marriage. The respondent, being of unsound mind, could not execute legal documents, leave alone make reasonable decisions. It was baffling how in such a condition he purportedly signed affidavits in the High Court,” argued JEK.

But the High Court ruled against JEK, noting that the claims she raised could only be resolved in a full hearing.

Aggrieved, she moved to the Court of Appeal, complaining that the case before High Court was stillborn, as the man was mentally unwell.

She argued that her step-daughter could not file a divorce case on behalf of her father as the union belonged to her father.

But Court of Appeal judges Alnasir Visram, Wanjiru Karanja and Martha Koome agreed with the High Court that the objections raised could not be determined unless the parties argue in a full hearing.

“Whether the petition was a nullity on account of the respondent’s mental capacity and/or whether the petition was instigated by third parties could only be determined after the hearing of the intended guardian ad litem application,” the court ruled.