JMK v PLWG [2025] KEHC 12251 (KLR)

Factual Background

The Applicant, JMK, filed a Notice of Motion under section 67 of the Marriage Act seeking recognition and adoption by the Kenyan High Court of a foreign divorce decree issued by the Superior Court of Washington, USA, on 19 April 2022. The parties celebrated their marriage in Nairobi on 22 May 2001 and later relocated to the United States after securing green cards. During the subsistence of the marriage, they were blessed with two issues.

Their marriage was dissolved in the USA due to irreconcilable differences. The marriage was dissolved in accordance with the laws of the state of Washington. Neither of the parties contested the validity of the decree orders. Both parties were domiciled in the USA at the time of the divorce. The Respondent was served but did not participate in the proceedings.

Issues for Determination

1. Whether the foreign divorce decree issued by a foreign court can be recognized and adopted as a valid judgment by the Kenyan high court
2. Distinction between recognition and adoption of foreign divorce decrees in Kenya 

Whether the foreign divorce decree issued by a foreign court can be recognized and adopted as a valid judgment by the Kenyan high court

The court found that the application had satisfied the requirements of section 67 of the Marriage Act, which governs the recognition of foreign divorce decrees, and was recognizable by a Kenyan High Court. This was because both parties were domiciled in the country where the decree was issued. Additionally, the divorce decree was also effective in the country of issue, as there was nothing suggesting that the court that issued the divorce decree lacked jurisdiction to do so.

Section 67 of the Marriage Act requires that, for a foreign decree in matrimonial proceedings, whether the marriage was celebrated in Kenya or elsewhere, to be recognised and adopted in Kenya, either of the following conditions has to be met:

1. Either party is domiciled in the country where that court has jurisdiction or has been ordinarily resident in Kenya for at least two years immediately preceding the date of institution of proceedings;
2. Being a decree of annulment, divorce, or separation, it is effective in the country of domicile of the parties or either of them.

The parties to the proceedings before the high court had satisfied all the above requirements. Their marriage was celebrated in Kenya sometime in 2001. They were both domiciled in USA (the country where the decree was issued), and the divorce decree was effective as it was issued by a competent court and had not been contested by either of the parties. The court therefore adopted the divorce decree issued to the parties to the case by the Superior Court of Washington, County of King, USA, on 19 April 2022 as an order of the court.

Distinction between registration and recognition of foreign divorce decrees

Although not an issue before the court, the learned judge of the High Court went ahead and discussed the difference between registration and recognition of foreign divorce decrees. According to the court, recognition of foreign decrees is different from registration of foreign decrees. The implication of the Foreign Judgments (Reciprocal Enforcement) Act, which regulates registration of foreign judgments, is that foreign judgments arising out of matrimonial proceedings should be registered, not for enforcement purposes, since matrimonial causes are declaratory in nature, but for the dissolution of a marriage, which is a personal right.

Registration of foreign divorce decrees is governed by section 61 of the Marriage Act. The said section requires a party seeking to register a foreign decree arising from a matrimonial proceeding (divorce, dissolution, etc.) to apply to the registrar of marriages for such registration. An application for registration of a foreign decree in a matrimonial proceeding is to be accompanied by:

1. A copy of the decree;
2. A copy of certified translation of the decree if it was not issued in any of the official languages of the country;
3. A declaration under the law of the country in which the decree was obtained made to a legal practitioner authorised to witness such a declaration that states the decree is effective in that country as if the marriage had been celebrated in that country.

Conclusion 

This case demonstrates a consistent judicial approach in Kenya to recognition of foreign divorce decrees under section 67 of the Marriage Act, emphasizing domicile, jurisdiction, and effectiveness of the decree, while distinguishing recognition by courts from registration by the Registrar of Marriages under section 61.