LEGAL REVIEW: THE GROUNDS AND PROCESS OF DIVORCE IN KENYA

INTRODUCTION

In Kenya, the divorce process in Kenya is governed by Marriage Act No. 4 of 2014., which provides specific grounds upon which a marriage can be dissolved. To initiate divorce proceedings, one must establish valid grounds recognized by Kenyan law.

The Marriage Act does not expressly define what a divorce is. However, in summary, the Black’s Law Dictionary defines a divorce as the legal separation of two people by the judgment and decree of a court. A divorce is the process you undertake to dissolve the marriage permanently.

THE GROUNDS FOR DIVORCE IN KENYA:

A spouse can file for divorce based on the following grounds; adultery, cruelty, desertion, and irretrievable breakdown of a marriage. One has to prove beyond reasonable doubt that their spouse committed either of the mentioned grounds.

HAS v AAL [2020] eKLR: The plaintiff prayed for the dissolution of her marriage because her husband had neglected his parental duties, treats her with cruelty, insults her with vulgar words, and assaults her. Upon analysis of the evidence, the court entitled the plaintiff to divorce. The judge declared the marriage dissolved and ordered the issuance of a divorce certificate.

FAO v MB [2021] eKLR: The plaintiff filed for divorce because the defendant is negligent, assaults her, insults her, and treats her with cruelty. She also claimed that the defendant threatened to kill her. After successfully proving her case, the court granted the plaintiff entitlement to divorce since it was proved that she suffered psychological treatment and was denied her fundamental rights to marriage under Islamic law.

 1.   Adultery:

One spouse engaging in sexual relations with someone other than their spouse is considered adultery.

Adultery is a commonly cited ground for divorce in Kenya, and it is essential to provide evidence to substantiate the claim.

2.   Cruelty:

If one spouse subjects the other to physical or mental cruelty or harassment, it can be considered grounds for divorce.

Cruelty may include physical violence, emotional abuse, or any behavior that endangers the well-being of the other spouse.

3.   Desertion:

Desertion occurs when one spouse abandons the other without reasonable cause for at least three years.

The deserted spouse can file for divorce on the grounds of desertion.

 4.   Long Separation:

If a couple has lived apart for at least four years and can demonstrate that they have been living separate and independent lives during this period, it can be grounds for divorce.

This separation must be voluntary, and both spouses should be in agreement that the marriage has broken down irretrievably.

5.   Incurable Insanity:

If one spouse has been declared incurably insane by a qualified medical practitioner and has been in such a condition for at least five years, it can be grounds for divorce.

6.   Venereal Disease:

If one spouse has a venereal disease that is both incurable and communicable, and the other spouse was unaware of the disease at the time of marriage, it can be grounds for divorce.

7.   Impotence:

 If one spouse is impotent and unable to consummate the marriage, and this fact was not known to the other spouse before marriage, it can be grounds for divorce.

 8.   Presumption of Death:

If one spouse has been missing for seven years or more, and there is a presumption of their death, the other spouse can seek a divorce.

 9.   Non-Compliance with Court Orders:

Failure to comply with a court order regarding maintenance, custody, or any other court-issued directives can also be a ground for divorce.

 Section 73 of the Marriage Act sets out the following grounds for annulment of marriages:

 (a) Where the marriage has not been consummated since celebration.

 (b) Where at the time of the marriage without their knowledge, either party was in a prohibited relationship

 (c) In the case of monogamous marriages, one of the parties was married to another person.

 (d) The Petitioner’s consent was not freely given

 (e) A party to the marriage was absent at the time of celebration of the marriage.

 (f) At the time of the marriage and without the knowledge of the husband, the wife was pregnant, and that the husband is not responsible for the pregnancy.

 (g) At the time of marriage, without the knowledge of the petitioner, the other party suffered from incurable bouts of insanity.

THE DIVORCE PROCESS IN KENYA

 The divorce process in Kenya is governed by the Marriage Act, the Matrimonial Property Act, and various other legal provisions.

1.  To file for divorce in Kenya, you must meet certain eligibility criteria, including having a valid marriage recognized under Kenyan law.

 2.   Grounds for Divorce: You must have valid grounds for divorce.

 3.   Consulting an Attorney: It is advisable to consult with an attorney who specializes in family law to guide you through the divorce process and ensure that you meet all the legal requirements.

 4.   Filing a Petition: The process typically begins with one spouse (the petitioner) filing a divorce petition in the High Court of Kenya. The petition should outline the grounds for divorce and other relevant details.

 

The Legal process for Divorce in Kenya

 Step 1

A Person seeking the Divorce is referred to as the Petitioner while the person against whom a divorce is sought is referred to as the Respondent. The divorce process begins with the petitioner preparing a divorce petition which sets out the grounds for divorce and the facts the Petitioner relies on to establish those grounds. The Petition is filed together with a Verifying Affidavit, a Notice to Appear, a List of Witnesses and their statements and a List of Documents the Petitioner wishes to rely on.

Step 2

Once the divorce petition has been prepared and filed in court, it served together with a Notice to appear upon the respondent so that he/she can enter an appearance and file their response to the Divorce Petition. The notice to appear will normally direct the Respondent to appear and answer to the Petition within 15 days. Where the Respondent does not contest the divorce, he/she may opt to not file a response to the Petition and the divorce will proceed as uncontested. If the Respondent contests the grounds for divorce set out by the petitioner, he/she may file a response to the Petition also includes a cross-petition in which the respondent sets out their own grounds for divorce against the Petitioner.

Step 3

After the lapse of the 15 days, the Petitioner will request the court to issue a certificate allowing parties to move to the hearing stage. If the court is satisfied that the Divorce Petition is ready for hearing, it will issue the certificate and grant a hearing date. Both Parties will then get an opportunity to present their facts and evidence before the court during the hearing.

Step 4

After the hearing is completed, the court will issue a separate date where it will deliver its judgement. If the court finds that there are sufficient grounds to dissolve the marriage, it will then issue a Decree Nisi. The Decree Nisi is a temporary order that runs for 30days and gives the Parties time to make a final decision on whether they still wish to proceed the divorce and have the marriage dissolved. If the parties change their minds and choose not to proceed with the divorce, they are free to notify the court of their decision.

Step 5

If the Parties still wish to have their marriage dissolved after the 30 days of the Decree Nisi have lapsed, the court will issue a Decree Absolute which is the final decree of divorce to dissolve the marriage. At this point, the parties are no longer considered married to each other and are in fact both free to remarry.

 

 5.   Property Division: If there is matrimonial property involved, the court may determine how it should be divided between the spouses. The Matrimonial Property Act provides guidelines for the equitable distribution of property.

 

 6.   Child Custody and Support: If there are children involved, the court will also address issues of child custody, visitation rights, and child support. The best interests of the child are considered in these matters.

 

 7.   Hearing and Judgment: The court will schedule a hearing where both parties can present their case. After considering all the evidence and arguments, the court will issue a judgment either granting or denying the divorce.

 

 8. Decree Absolute: Once the court grants the divorce, a decree absolute is issued, officially terminating the marriage.

 

9. Appeals: Either party has the right to appeal the court's decision if they believe it is unjust.

 

10. Finalizing Financial Matters: After the divorce, the parties may need to finalize financial matters, including the division of assets and payment of any support or maintenance as per the court's orders.

 

Conclusion

Divorce proceedings are exhausting and time-consuming. Parties can simply use other alternative dispute resolution mechanisms to solve their marital issues. 

 However, heading to court is a good option because the decree made by a judge is usually final and binds all parties, meaning that there will be some understanding between the two parties. Courts should come up with better ways of solving divorce cases faster and more efficiently to reduce the workload and the number of unresolved cases.

The Process Of Conversion Of Titles in accodance with the Land Registration Laws

 

Pursuant to the Conversion Manual issued by the Ministry of Lands, the public is advised that all titles are to be converted from the regimes under Repealed Acts and in accordance with the Land Registration Act. 

In this article we seek to demystify the various titles and describe the process of conversion as provided by the Ministry of Lands.

1.0 Repealed Land Registration Systems In Kenya And The Process Of Land Registration Under The New Regime

Land law in Kenya is characterized by various pieces of Legislation which still dictate the processes in the issuance of title deeds.  Since colonialism, the process of registration and issuance of title has been governed by multiple statutes.  In Kenya there are five land registration systems namely; the Registered Land Act (RLA), the Registration of Titles Act (RTA), the Land Titles Act (LTA), Registration of Documents Act (RDA) and the Government Lands Act (GLA) (which have all been repealed) and the Land Registration Act.

These statutes determined the type of document under which a particular parcel of Land was registered.  Under the Registration of Documents Act (RDA), the Land Titles Act (LTA) and the Government Lands Act (GLA, the registration system was that of documents or deeds while under the Registration of Titles Act (RTA) and Registered Land Act (RLA), the registration system was that of titles.

1.1 Registration of Documents Act (RDA)

Enacted in 1902, the Act essentially sought to create a register of documents. It provided for both compulsory and optional registration. The Act made it obligatory to register any document that purported to confer a right, title or interest in immovable property. However, certain documents could be registered at the option of the owner such as Building Plans, Wills, Powers of Attorneys and Deed Polls.

1.2 The Lands Title Act (Cap 283 Laws of Kenya)

This act was enacted in 1908 specifically to assist the government to differentiate between private land and crown land leased from the Sultan of Zanzibar.  Persons who were entitled to private land were issued with Certificates of Ownership giving freehold title. On the other hand, if the title acquired was leasehold, then Certificates of Mortgage or Certificates of Interest were issued as evidence of ownership.

1.3 The Government Lands Act (Cap 280 Laws of Kenya)

This Act was enacted in 1915 and mostly dealt with land parcels considered as farm land such as land in Central Province, Kericho and Nairobi. The title deeds issued under this system contained the words “Indenture”, “Conveyance” or “indenture of conveyance” as part of their heading.

1.4 The Registration of Titles Act (Cap 281 Laws of Kenya)

This statute came into force in 1920 with the aim of improving the issuance of titles to land as well as regulating the same. Just like the Lands Titles Act, under this act, the documents evidencing ownership were Certificates of Ownership, Mortgage or Interest. The Registered Land Act (Cap 300 Laws of Kenya)

Under the Registered Land Act, A certificate of Lease was issued for leasehold Land and an Absolute title deed registered where the land in question was freehold land.

2.0 The process of conversion of titles

The above statutes have since been repealed and the Ministry of Land and Physical Planning has embarked on the process of registration of these titles under the newly enacted Land Registration Act, 2012. In order to effect the provisions of the Land Registration Act 2012, all titles issued under the repealed laws shall be cancelled and replaced with titles under the Land Registration Act, 2012.

Essentially, the process of conversion begins with the preparation of cadastral maps which serve as a unified survey document together with a conversion list showing the old parcel numbers of land within a registration unit and their corresponding sizes.

Upon receipt of the cadastral maps and the conversion list from the registrar, the Cabinet Secretary in charge of the ministry of Land and Physical Planning shall in line with regulation 4 (4) of the Land Registration (Registration Units) Order, 2017, notify the Public through the Kenya Gazette and two daily newspapers of nationwide circulation of the list of old parcel numbers and new parcel numbers after conversion. The Gazette notice shall specify the date after which the land registry shall be open to the public for transactions or dealings within the registration unit.

Any complaints relating to information in the conversion list or cadastral maps shall file be filed within ninety (90) days from the date of publication of the notice. The complaints shall be made, in writing in Form LRA 96 set out in the Second Schedule to the Land Registration (Registration Units) Order, 2017 or Form LRA 67 set out in the Sixth Schedule to the Land Registration (General) Regulations, 2017 for the registration of a caution pending the clarification or resolution of any complaint. The complaints shall thereafter be resolved within ninety (90) after receipt.

At the commencement date, all registers maintained in any other registry previously dealing with the parcels within the registration unit shall be closed for any subsequent dealings and all transactions carried out in the new register.

The registrar will then issue a notice inviting registered owners to make an application for replacement of title documents from the closed registers.  The application shall be accompanied by the original title and the owner’s identification documents. The registrar will then replace the title deeds with new ones and retain the old title documents for records and safe custody.

However, it is important to note that this conversion does not interfere with the ownership, size and other interests registered against the respective title. When it comes to titles in the possession of third parties such as banks, hospitals and courts, the process of conversion shall commence on application by the proprietor.

3.0 Conclusion

The conversion process is an continuing process intended to be carried out in stages. The Ministry of Lands has already issued a Gazette Notice listing various parcels of Land to be converted. Land proprietors are expected to be vigilant and compliant with these notices. To this end land owners are encouraged to confirm whether their properties are listed and make complaints if any within the stipulated period.

Disclaimer: The content of this document is intended to be of general use only.

ANALYSIS OF THE LAW ON CAVEAT AND CAUTION

 

WHAT IS A CAVEAT?

The word Caveat means warning or proviso (something said as a warning, caution, or qualification). The lodging of a caveat over a property is a way telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority.

 

WHAT IS A CAUTION?

A Caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice.

 

HOW DOES ONE PLACE AND REMOVE A CAVEAT OR CAUTION?

a) Notice and effect of Caution

The registrar shall give notice in writing of a caution to the proprietor whose land, lease or charge is affected. So long as the caution remains registered, no disposition which is inconsistent with it shall be registered, except with the consent of the cautioner or by order of the court.

 

b) Withdrawal/removal of the Caution

i. A caution can be removed by the person lodging the same, or by order or the court, or by the Registrar, if such person fails to remove it after being served with a notice to do so by the Registrar.

 

ii. The registrar may, on the application of another person interested, serve notice on the cautioner warning him that his caution will be removed at the expiration of the time stated in the notice. If at the expiration of the time stated the cautioner has not objected, the registrar may remove the caution.

 

c) Second Caution in respect to the same matter

The registrar may refuse to accept a further caution by the same person or anyone on his behalf in relation to the same matter as a previous caution.

 

d) Wrongful Caution

Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damaged at the suit of any person who has sustained damage, to pay compensation to such person.

 

WHO CAN LODGE A CAVEAT OR CAUTION ON LAND?

Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registable instrument, e.g. a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his interest. Entry of a transaction, with respect to such land, may not then be made unless the cautioner has received notice. Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.

 

Sacco Societies Regulatory Authority (SASRA)/Frequently asked questions on Regulation of SACCOS in Kenya

What regulates SACCOs in Kenya?

The SACCO Societies Regulatory Authority (SASRA) is the primary regulatory body charged with licensing Deposit‑Taking Sacco Societies (Savings and Credit Co-operatives Societies) - DT regulation 2010 and authorizing specified Non Deposit taking saccos - NDTS Regulations 2021 in the Republic of Kenya.

The Sacco Societies Regulatory Authority (SASRA) is a statutory state corporation established under the Sacco Societies Act (Cap 490B) of the Laws of Kenya (the Act) which came into full operation upon the gazettement of the Sacco Societies (Deposit-taking Sacco Business) Regulations, 2010 (the Regulations 2010) on 18th June 2010. The principal mandate of the Authority under the Act as read with the aforesaid Regulations, 2010 has been to license Sacco Societies to undertake deposit-taking Sacco business in Kenya (popularly known as Front Office Service Activity or FOSA), and to supervise and regulate such Sacco Societies in Kenya among other things.

Are SACCOs regulated by CBK?

ii) CBK has a formal working partnership with SASRA to engage in continuous technical consultations to guide the licensing, regulation and supervision of deposit taking SACCO Societies.

How are SACCOs governed?

According to Part II of the SACCO Societies Act 2008 Kenya, an authority is established to regulate and manage SACCO societies. This authority is called SACCO Societies Regulatory Authority (SASRA).

How do SACCOs operate in Kenya?

Like banks, SACCOs accept deposits and make loans—but unlike banks, SACCOs are not in business to make a profit. Banks exist to make money for their stockholders, not for their depositors. SACCOs exist solely to serve their member-owners, and benefits are returned in lower loan rates and higher deposit rates.

Are all SACCOs regulated by Sasra?

SASRA's mandate allows it to regulate, supervise, and license all the deposit-taking Saccos in the country in accordance with the Sacco Societies Act of 2008. Before a Sacco is registered, it has to comply with all the SASRA regulations.

Can one join two SACCOs in Kenya?


Yes. As long as the said member shall belong to no more than one Sacco Society having similar objectives as mentioned above.

Which is best Sacco in Kenya?

STIMA SACCO SOCIETY LTD

Membership is open and any Kenyan citizen is eligible to join Stima Sacco regardless of his or her area of residence. Stima Sacco is currently ranked as the best performing Sacco in the country.

How many members can form a SACCO?


The number of members in the society (At least 10 members); The names, occupation and postal addresses of the Chairman, treasurer and secretary; Proposed Physical address of the society.

How do you manage a SACCO?

SACCO members are the owners and they decide how their money will be used for the benefit of each other. Savings and Credit Cooperatives are democratic organizations and decisions are democratically made. Members elect a board that in turn employs staff to carry out the day-to-day activities of the SACCO.

Does a Sacco have a Constitution?


Section 2 of the SACCO Societies Act defines a Sacco as a savings and credit co-operative society registered under the Co-operative Societies Act. A Sacco is therefore a co-operative society regulated under Part 2 of the Fourth Schedule to the Constitution.

How do you earn dividends in a SACCO?


Saccos pay dividends to all members with balances in deposits and share capital for a given financial year. Most Saccos pay their members' dividends after approval, usually done after the Annual General Meeting.

Which is the richest Sacco in Kenya?

Mwalimu National remains the wealthiest Sacco new Sacco Societies Regulatory Authority (SASRA) data shows.

Procedure for Registration of non-deposit taking saccos

1. Formal request in writing to the commissioner for cooperative development with intent for the formation of a non-deposit taking Sacco

2. Proposed Names for Search and approval

3. Objectives of the society

4. The number of members in the society ( at least 10 members)

5. The name, occupation and postal addresses of the chairman, treasurer and secretary

6. Proposed physical address of the society, address includes road, plot number, town and county

7. Constitution of the society

8. Sacco Registration Forms

Procedure for Registration of deposit-taking saccos

1. The Sacco has to provide a minimum core capital of Kshs 10 million as shown in their financial or through submission of bank statements

2. All directors and senior management will be subject to a fit and proper test vetting their moral and professional suitability to be on the board and to manage the Sacco Society Respectively.

3. A detailed four year business plan and feasibility study including projected financial statements.

4. Fill in and submit application forms to SASRA and required documents

5. If satisfied SASRA will issue a letter of intent, upon which the Sacco will be required to set up its business premises, put in place the management information systems and develop a comprehensive risk management framework.

6. Once the above is completed SASRA will conduct an onsite inspection within 30 days and if satisfied will issue a Letter of Compliance to the Sacco within another 30 days.

7. The body will then issue a License upon payment of the stipulated license fees.

8. The estimated time is 4 months for a Sacco that fully complies with all the licensing requirements. The license for deposit taking is renewable annually.

 Courtesy of SSRA