1. The Applicant married the Respondent on 5th December 2018 at the Registrar of Marriages’ office in Mombasa. At the time they solemnized their union, the Applicant, a business lady, resided in Italy, while the Respondent, an accountant, lived in Mombasa, Kenya. When they married, the parties were a spinster and a bachelor, respectively. The union between the two was not blessed with children.
2. The parties are currently domiciled in Italy. The Applicant is an Italian citizen, while the Respondent is a Kenyan national.
3. The marriage between the Applicant and the Respondent was dissolved on 26th January 2023 pursuant to the judgment of the Second Civil Division Court of Venice, Italy. Vide the proceedings before me, the Applicant seeks to have the said judgment recognized and adopted by this honourable court.
4. The Applicant’s Notice of Motion is dated 4th September 2024. Vide the said Motion, she seeks the following four orders: -
1. That the honourable court be pleased to recognize and adopt the decree of dissolution of marriage issued on 26th January 2023 to the Applicant and the Respondent at the Second Civil Division Court at Venice, Italy in Case Number GR No 3468 of 2022; and
2. That costs of the application be provided for.
5. The Applicant avers that the Second Civil Division Court at Venice, Italy, is a competent Court with requisite jurisdiction to hear and determine matrimonial proceedings and that, for that reason, the said decree is valid and effective. The Applicant attached to her supporting affidavit a copy of the Certificate of Marriage, her identification card, the judgment of the court in Italian, and a duly authenticated copy in English.
6. The matter proceeded exparte before me on 9th December 2024. Ms Gitari, the learned counsel for the Applicant, prayed that I allow the application. After hearing the submissions of the said counsel, I reserved my ruling for 20th December 2024.
7. I have perused the said application and the affidavit in support thereof. I have also considered the exhibits annexed to it. I must now determine whether to allow the application.
8. Section 67 of the Marriage Act, 2014 provides for the recognition of divorce decrees issued by Foreign Courts as follows:-
“Where a foreign court has granted a decree in matrimonial proceedings whether arising out of a marriage celebrated in Kenya or elsewhere, that decree shall be recognized in Kenya if:-
(a) either party is domiciled in the country where that court has jurisdiction or had been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of proceedings;
(b) being a decree of annulment, divorce or separation, it is effective in the country of domicile of the parties or either of them.”
9. The Applicant and the Respondent are both domiciled in Italy. I have no reason to doubt that the Court that issued the decree had the requisite jurisdiction. I have read the English language translation of the judgment. I note that the judgment of the Court was made pursuant to the joint petition of the parties and that upon considering all the issues, the Court issued the judgment sought to be recognized and adopted. I therefore find and hold that the judgment provided by the Applicant can be recognized in Kenya.
10. Under Kenyan law, “recognition” of a divorce decree is different from “registration”. The Court in IWN v HJC [2021] eKLR stated, "It must be noted that recognition of foreign judgments is not the same as registration. Whilst the provisions of the Foreign Judgments (Reciprocal Enforcement) Act only regulate the registration of foreign Judgments, the implication is that Judgments arising out of matrimonial causes be registered not for enforcement purposes since matrimonial causes are declaratory in nature but for dissolution of the marriage which is a personal right. Foreign annulment and dissolution of marriage are now registrable under Section 61 of the Marriage Act, 2014. Registration of such orders is a preserve of the Registrar of Marriages and not the Courts. For clarity purposes and avoidance of doubt, I wish to reproduce Section 61(1) of the Marriage Act, 2014, which provides that:-
“where a marriage celebrated in Kenya is annulled or dissolved by a Decree of a foreign Court, any party to the annulled or dissolved marriage may apply to the Registrar to register the Decree.”
11. I fully agree with what W Musyoka, J stated in MNM v PNM (2016) eKLR that:-
“Foreign annulments and dissolution of marriages are now registrable under Section 61 of the Marriage Act, 2014. However, unlike the provisions in the Foreign Judgments (Reciprocal Enforcement) Act, which envisages the adoption of such orders by the courts, the registration envisioned in Section 61 of the Marriage Act, 2014 is by the Registrar of Marriages.”
12. The Applicant seeks to have the foreign decree of divorce recognized and adopted by this Court. Although the Applicant should have applied for the registration of the judgment by the Registrar of Marriage, under section 61 of the Marriage Act, 2014, rather than come to court as she has done, I see no harm in acceding to her request out of pure prudence. In the result: -
1. I recognize and adopt the judgment and or decree of divorce from the Second Civil Division Court at Venice, Italy, signed on 26th January 2023 and issued to Gabriella Ceciliati, the Applicant herein, and Edward Masyuko Waraba, the Respondent herein;
2. I order the Applicant to register the said judgment and or decree of divorce with the Registrar of Marriages pursuant to section 61 of the Marriage Act, 2014; and
3. Each party shall bear own costs.
Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually through Microsoft TEAMS.
2. The parties are currently domiciled in Italy. The Applicant is an Italian citizen, while the Respondent is a Kenyan national.
3. The marriage between the Applicant and the Respondent was dissolved on 26th January 2023 pursuant to the judgment of the Second Civil Division Court of Venice, Italy. Vide the proceedings before me, the Applicant seeks to have the said judgment recognized and adopted by this honourable court.
4. The Applicant’s Notice of Motion is dated 4th September 2024. Vide the said Motion, she seeks the following four orders: -
1. That the honourable court be pleased to recognize and adopt the decree of dissolution of marriage issued on 26th January 2023 to the Applicant and the Respondent at the Second Civil Division Court at Venice, Italy in Case Number GR No 3468 of 2022; and
2. That costs of the application be provided for.
5. The Applicant avers that the Second Civil Division Court at Venice, Italy, is a competent Court with requisite jurisdiction to hear and determine matrimonial proceedings and that, for that reason, the said decree is valid and effective. The Applicant attached to her supporting affidavit a copy of the Certificate of Marriage, her identification card, the judgment of the court in Italian, and a duly authenticated copy in English.
6. The matter proceeded exparte before me on 9th December 2024. Ms Gitari, the learned counsel for the Applicant, prayed that I allow the application. After hearing the submissions of the said counsel, I reserved my ruling for 20th December 2024.
7. I have perused the said application and the affidavit in support thereof. I have also considered the exhibits annexed to it. I must now determine whether to allow the application.
8. Section 67 of the Marriage Act, 2014 provides for the recognition of divorce decrees issued by Foreign Courts as follows:-
“Where a foreign court has granted a decree in matrimonial proceedings whether arising out of a marriage celebrated in Kenya or elsewhere, that decree shall be recognized in Kenya if:-
(a) either party is domiciled in the country where that court has jurisdiction or had been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of proceedings;
(b) being a decree of annulment, divorce or separation, it is effective in the country of domicile of the parties or either of them.”
9. The Applicant and the Respondent are both domiciled in Italy. I have no reason to doubt that the Court that issued the decree had the requisite jurisdiction. I have read the English language translation of the judgment. I note that the judgment of the Court was made pursuant to the joint petition of the parties and that upon considering all the issues, the Court issued the judgment sought to be recognized and adopted. I therefore find and hold that the judgment provided by the Applicant can be recognized in Kenya.
10. Under Kenyan law, “recognition” of a divorce decree is different from “registration”. The Court in IWN v HJC [2021] eKLR stated, "It must be noted that recognition of foreign judgments is not the same as registration. Whilst the provisions of the Foreign Judgments (Reciprocal Enforcement) Act only regulate the registration of foreign Judgments, the implication is that Judgments arising out of matrimonial causes be registered not for enforcement purposes since matrimonial causes are declaratory in nature but for dissolution of the marriage which is a personal right. Foreign annulment and dissolution of marriage are now registrable under Section 61 of the Marriage Act, 2014. Registration of such orders is a preserve of the Registrar of Marriages and not the Courts. For clarity purposes and avoidance of doubt, I wish to reproduce Section 61(1) of the Marriage Act, 2014, which provides that:-
“where a marriage celebrated in Kenya is annulled or dissolved by a Decree of a foreign Court, any party to the annulled or dissolved marriage may apply to the Registrar to register the Decree.”
11. I fully agree with what W Musyoka, J stated in MNM v PNM (2016) eKLR that:-
“Foreign annulments and dissolution of marriages are now registrable under Section 61 of the Marriage Act, 2014. However, unlike the provisions in the Foreign Judgments (Reciprocal Enforcement) Act, which envisages the adoption of such orders by the courts, the registration envisioned in Section 61 of the Marriage Act, 2014 is by the Registrar of Marriages.”
12. The Applicant seeks to have the foreign decree of divorce recognized and adopted by this Court. Although the Applicant should have applied for the registration of the judgment by the Registrar of Marriage, under section 61 of the Marriage Act, 2014, rather than come to court as she has done, I see no harm in acceding to her request out of pure prudence. In the result: -
1. I recognize and adopt the judgment and or decree of divorce from the Second Civil Division Court at Venice, Italy, signed on 26th January 2023 and issued to Gabriella Ceciliati, the Applicant herein, and Edward Masyuko Waraba, the Respondent herein;
2. I order the Applicant to register the said judgment and or decree of divorce with the Registrar of Marriages pursuant to section 61 of the Marriage Act, 2014; and
3. Each party shall bear own costs.
Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2024. Delivered virtually through Microsoft TEAMS.