EXCLUSIVE OCCUPATION ORDERS: How to Apply

INTRODUCTION

Did you know that it is possible to exclude your violent partner from your matrimonial home even before completing a divorce process? I thought you should know. Exclusion orders are a creation of the law meant to protect a victim of domestic violence and their children by excluding the aggressor from the shared residence without requiring the victims to go through the matrimonial property court.

This article will discuss exclusion orders as provided for under the Children’s Act and the Protection Against Domestic Violence Act. 

Exclusion orders under the Children Act Cap 141 Laws of Kenya

Children’s best interest is the primary consideration in all matters involving children. Section 8(1) of the Children’s Act states as follows:

“In all actions concerning children, whether undertaken by public, private, social welfare institutions, courts of law, administrative authorities, or legislative bodies, the child’s best interest shall be a primary consideration.”

In making any order of the child, Section 76 (3) (e) of the Act states as follows:

“ Where the court is considering whether or not to make an order with regard to a child, it shall have particular regard to the following matters—any harm the child may have suffered or is at risk of suffering.”

Thus, in applying for an exclusion order, we will ask the court to find that it is in the children’s best interest to prevent them from further harm, such as your husband’s exclusion from residence. We will need irrefutable evidence of the kind of effect his strained relationship with his first-born child had on the child. For this reason,, we request that you find a child psychologist report that can aid the court in this case.

Section 135 (1) (c) provides for an exclusion order by stating as follows:

“An exclusion order requiring a person who has used violence or threatened to use violence against a child, whether or not that person permanently resides with the child, to depart from the home in which the child is residing or to restrain the person from entering the home or a specified part of the home or from a specified area in which the home is included, or to restrain any other person from taking the child to the person against whom the child needs protection for such a period as the court may specify.”

This is counter-balanced with the right of a child to live with and be cared for by his/her parents, as stated in Section 11 of the Children’s Act.

The court will have to consider what arrangement would best suit the child when granting the orders.

Exclusion Orders under the Protection Against Domestic Violence Act

This Act caters to and seeks to protect persons who are living in domestic relationship from abuse and domestic violence. Under Section 2 of the Act, emotional and psychological abuse is defined as:

 “A pattern of degrading or humiliating conduct towards the applicant, including but not limited to the following…(a) repeated insults, ridicule or name-calling; and (b) repeated threats to cause emotional pain.”

Section 19(3) of the Act states as follows:

“Without prejudice to the provisions of this section, the court may in an order under this section—subject to subsection (6), grant to any protected person the right of exclusive occupation of the shared residence or a specified part thereof by excluding the respondent from the shared residence or the specified part thereof, regardless of whether the shared residence is solely owned or leased by the respondent, or jointly owned or leased by the parties.”

Again, on this fort, we would need to demonstrate to the Domestic Violence Court that the order is necessary in the best interest of your safety and that of the children. This is very subjective in nature, and the court would then consider the facts in totality.

CONCLUSION

You do not have to worry about where you shall live when you get protection orders against a violent or abusive partner. The court has the power both under the Children’s Act as well as under the Protection Against Domestic Violence Act, to exclude the violent partner from the shared residence, even if the violent partner is the one that owns the property.