FAMILY LAW

JOY OCTAVIA HUNTING   V. KENNETH MALCOM HUNTING[1963]  1 EA 616

FACTS

In November, 1960, the petitioner, in consideration  of  £1920  then  paid to her by  the respondent agreed in writing that she had  no  further  claims  upon her husband on account of alimony  and maintenance. About two years later the petitioner applied for  mainte nance and in an affidavit filed in support stated that the respondent had  paid  her no sum  whatever since 1960. The respondent’s affidavit in reply  referred to the payment by  him  of £1920 in 1960  whereupon  the  petitioner  filed  a further affidavit setting ou t how this sum  had been spent by  her. On a preliminary  point the  court ruled that the petitioner was entitled to pursue her application.  When the application was heard it was submitted for the respondent that although  the  petitioner was not debarred from  c laiming maintenance at some  future time, she was  not  entitled  to  any  maintenance then, because the amount paid by  the husband was to be regarded as in the nature of  maintenance, and that the petitioner was under a  duty either  to  invest that amount or utili se it as if it was a payment of maintenance. For the petitioner it was argued that the mode of expenditure of the £1920 was irrelevant.

HELD

(i) The court was entitled to go into matters relating to the expenditure of the £1920 and  the  court was satisfied that the major part of that sum  had been “frittered away” unnecessarily;

(ii) Upon the facts of the case, it would be wrong and inequitable to make an order for maintenance.

Application dismissed.

WILLIAM LYLE CARNIE  V. JANE CARNIE[1966]  1 EA 233

FACTS

The parties were judicially  separated in 1939 and  a  consent  order for permanent alimony  was made by  the court. This order was varied  by  further consent orders in 1940 and 1952. In September, 1964 the respondent’s application for another modification of the  order was resisted  on  a  preliminary  point that the court had no jurisdiction to make such  an order. The preliminary  objection  was  argued entirely  on the question whether power to amend a consent order for alimony  is conferred by  s. 32 of the Matrimonial Causes  Act. The judge in allowing the application held that he had power to make such an order by  virtue of s. 14(1) of the English Administration of Justice (Miscellaneous Provisions) Act, 1938, which in his opinion was imported into  Kenya  by  s.  3  of  the  M atrimonial Causes Act. In the  alternative,  he  considered that he had that  power under s. 32 of the Matrimonial Causes Act and stated that he was not bound by  the English authorities which give a narrow interpretation to s. 196  of the Supreme Court of Judicature  (Consolidation) Act, 1925 (now  repealed) which section corresponds to s. 32 of the Matrimonial Causes Act. On appeal it was submitted that the meaning of s. 3  of  the Matrimonial Causes Act is to be construed in the same way  as were the corresponding provisions of the Supreme Court of Judicature (Consolidation) Act, 1925, and that it could not  have  been  intended to import into Kenya provisions of an  English  amending Act which the legislature of Kenya could have incorporated in the  Matrimonial  Causes  Act had they  thought fit to do so; that the interpretation placed on s. 196 of the Supreme Court of Judicature (Consolidation) Act, 1925, by  the  English  courts ought to be applied and that even if the English  authorities  were ignored, s. 32 of the Matrimonial Causes Act ought to be interpreted narrowly.

HELD

(i) s.  3  of  the Matrimonial Causes Act provides that the other provisions of that Act are to be interpreted in the same way  as the  corresponding  provisions of English Acts from  which they are derived and that English law may  be looked to in any  matters  which the Act fails to provide;

(ii) s.  14(1)  of  the Administration of Justice (Miscellaneous Provisions) Act, 1948 does not apply to Kenya;

(iii) (Duffus,  J.A.,  dissenting), s. 32 of the Matrimonial Causes Act, which empowers a court to vary or modify  any  order for the periodical payment of  money,  does not enable the court to modify  a consent order for alimony  made in proceedings for judicial  separation.

Appeal allowed.

WASON  V.  WASON [1967]  1 EA 682.

FACTS

The petitioner “by consent” was granted a non-cohabitation order and a maintenance order against her husband by the senior resident magistrate, Nairobi, and later brought this divorce petition under s. 10(1) (g) of the Hindu Marriage and Divorce Act on the ground that a decree of judicial separation had been in force between the parties for at least two years immediately preceding the petition and the parties had not cohabited since that date.

HELD

(i) the non-cohabitation order was made for desertion and wilful neglect to provide maintenance and not on a finding of cruelty and therefore could not be regarded as a decree on the ground of cruelty;

(ii) the order, being made “by consent”, could not in any event be used as a decree of judicial separation for the purposes of s. 10 (1) (g) of the Hindu Marriage and Divorce Act;

(iii) although a non-cohabitation clause in a magistrate’s order has the effect in all respects of adecree of judicial separation on the grounds of cruelty as per s. 4 (a) of the Subordinate Courts(Separation and Maintenance) Act, it has not the effect of a decree of judicial separation for the purposes of s. 10 (1) (g) of the Hindu Marriage and Divorce Act (Harriman v. Harriman (1)and Gollins v. Gollins (2) followed).

Observations as to the need for care to be exercised by magistrates in the granting of non-cohabitation order and upon the circumstances in which such an order is appropriate.

Petition dismissed.

ERNEST UCHAI  V. EUNICE ELIKANA(1969) H.C.D.  n. 2.

FACTS

This appeal came from the  ruling of the learned Senior Resident Magistrate who refused to entertain an application  by  the appellant for a discharge of the order by which the respondent, the  wife of the appellant, was granted maintenance under the District Courts (Separation and Maintenance) Ordinance, Cap. 274. The application was  dismissed on the basis that the points raised in the application were  already adjudicated upon. The appellant, on this appeal, argued that s.8 (1) was not  restricted to mere increases or decreases in the amount to be paid as maintenance, or indeed to a  discharge under the provisions  of s. 8(2) of the  Ordinance, but that the appellant was permitted to challenge “any  such order” upon bringing fresh evidence which may indicate that the marriage was a customary marriage.

HELD

(1) It is possible for  the Magistrates upon fresh evidence to alter, vary or discharge the order that they had previously made.  (See Rex v. Middlesex Justices (1933) 2.  K.B. 1; see also  In Re Wakeman (1947) 2 Ch. 607 and 613.)

(2) Fresh evidence is not restricted as  to subject matter: it may concern not only matters connected with sums of maintenance to be awarded, but also matters affecting the position of  the parties. Thus fresh evidence has been admitted to show that  the order must be discharged because at the time of the wife’s marriage her former husband was still alive. (See Halsbury Vol. 12, pages 492 and 493, not (j) and  the authorities  there cited)

(3) In the present case the question was whether the marriage of the parties was a customary union or  a monogamous  union falling within the definition in s. 2 cap. 364. As the  District Courts (Separation Maintenance) Ordinance applies only to monogamous  marriages by virtue of s. 2(2) it follows that the distinction is vital.

(4) The first Magistrate held that  the marriage fell within the definition, while appellant argues that it was customary union; therefore if there was fresh evidence on this matter, then it ought to have been admitted.

(5) The appeal is allowed not so  much because the learned Magistrate was wrong  in  applying  the doctrine of res judicata, since it may still apply, but because it appears to  have  been applied prematurely,  before the appellant had been given the opportunity  of putting his alleged  fresh evidence before the court.

HELEN MONICA  BARRETT  V.  JAMES BARRETT[1961]  1 EA 503

FACTS

The petitioner and respondent were judicially  separated by  decree dated October 4, 1960, which  gave the  petitioner  custody  of  the  children of the marriage and also under s. 25 of the Divorce Ordinance ordered that the respondent should until further order pay  the petitioner permanent alimony  at  the  rate of Shs. 1,000/- per month. In anticipation of payment to the respondent of arrears  of  official  salary and gratuities the petitioner sought to have the order for alimony  altered by  ordering the respondent to pay  to her such part of the arrears and gratuities as the court deemed fit and for a  provisional attachment of the said monies. The court had  made  an ex parte  order on March 23, 1961, provisionally  attaching the monies that were due or becoming due  to  the respondent and by  a further order made on March 27, 1961,  one  moiety  of  his  salary  was attached. Relying on s. 26 of the Divorce Ordinance  whereby  the  court  has the power  to  discharge, modify  or suspend an order made under s. 25 thereof, where the husband has from  any  cause  become  unable to make the payments ordered, counsel for  the  respondent  argued  that the court had no power to increase permanent alimony  as it had in the United Kingdom. Counsel for the petitioner referred to s. 30  which  provides  that  in  a  su it for judicial separation the court can at any  time  make  such  order  as it thinks fit with respect to the maintenance of minor children of the marriage.

HELD

(i) the application was for the variation of an order which made no provision for the  maintenance of the children but which under  s.  25  of  the  Ordinance ordered the payment of alimony  to the wife; that order was personal to her and died with her.

(ii) it might be open to the petitioner  to  apply  for  an  order for maintenance of the children under s. 30 of the Ordinance but it could be entertained on the present application.

Application dismissed. Order for provisional  attachment dated March 23, 1961, discharged.

DOURADO  V. DOURADO(1970) H.C.D. n. 319

FACTS

This  was  an  application  by  the  respondent  in  matrimonial  proceedings  for  the stay  of  an  ex-parte  injunction  made  on  24th  August  1970  by  which  he  was ordered  to leave  the  flat  which  was  the  matrimonial  home  and  not  to  enter  it  nor  to molest  the  petitioner  his  wife,  in  the  use  and  occupation  of  it.    The  basic  objection the  grant  of  this  application  was  that  it  had  been  made  ex-parte  that  there  were no  circumstances  of  irreparable  loss  or  irreversible  prejudice  which  necessitated an  ex-parte  application.  For  the  petitioner  it  was  contended  that  there  was  no jurisdiction  in  this  Court  to  stay  an  order  for  injunction  once  granted.

HELD

(1)  “There  is  undoubtedly  power  to  vary,  discharge  or  rescind  any such  order.  In  my  view  the  power  to  discharge  must  include  the  power  to suspend.  Rescission  need  not  be  perpetual,  it  could  be  for  a  period  and  I  am satisfied  this  Court  could  suspend  the  order  for  an  injunction  until  the  inter  parties hearing  of  the  application.  The  exercise  of  this  power  would  be  discretionary.”

 (2) “I  have  looked  at  the  authority  quoted  on  the  hearing  of  the  ex-parte  application  – Silverstone  v.  Silverstone [1953]  1  All  E.R.  556.  it  would  appear  that  the  curt does  have  jurisdiction  make  an    ex-parte  injunction  in  a  situation  where  there  was a  dispute  as  to  who  should  be  the  occupant  of  the  matrimonial  home  pending  the determination  of  the  petition.  That  case  was  somewhat  different  from  this,  in  that at  the  time  of  the  filing  of  the  application  both  husband  and  wife  were  in  actual occupation  of  the  house  and  the  question  was  who  was  to  be  kept  out  pending the  hearing    of  he  petition.  Mr.  Balsara  has  pointed  out,  and  I  agree  with  that  the English  matrimonial  rules  govern  us  here  in  these  matters.  I  would  myself  have preferred,  had  this  application  been  made  to  me,  to  have  adjourned  it  for  a  short period  in  order  to  enable  the  respondent  be  present  and  be  heard  before  issuing the  injunction.  But  I  am  not  satisfied  that  there  is  any  good  reason  in  this  case  to discharge  the  order  which  has  been  made  by  the  learned  judge.”

 (3)  “Accordingly the  order  for  stay  will  not  be  granted.” 

BINION V. EVANS [1972] Ch. 359

FACTS

The defendants promised the sellers of land that they would permit the claimant to continue living in one of the cottages for the remainder of her life. In exchange for this promise, they received a significant discount on the price. The claimant had a mere license to remain on the land. The defendants later sought to evict her.

ISSUE

Personal rights are generally not enforceable against third-parties, in contrast to proprietary rights, which can be enforced against successors-in-title provided certain requirements are met. A contractual license is a form of personal, non-proprietary interest. Constructive trusts, by contrast, are proprietary interests that arise where the trustee has behaved in a manner such that it would be unconscionable to allow him to insist on his strict legal rights.

The issue in this case was whether the claimant could assert her contractual license to remain on the land against the defendants, who were not a party to that license: either by virtue of the license or because a constructive trust had arisen.

HELD

The Court of Appeal held that by promising to allow the claimant to remain in the home in exchange for the significant discount, the defendants had caused a constructive trust to arise. In these circumstances, it would be unconscionable for the court to allow the defendants to rely on their strict legal right to evict her.

The Court also implied that a contractual license could itself be an enforceable equitable interest. However, this point is likely not good law, due to the decision of the House of Lords in National Provincial Bank v Ainsworth, which held that licenses are non-proprietary and therefore cannot bind third parties in and of themselves.

I  v I [1971]  1 EA 278

FACTS

The applicant husband had divorced the respondent for adultery and thereafter applied for the determination of the parties’ interest in a house, and if the respondent was held to have any interest,for the settlement of it on the applicant and the child of the marriage. The house had been put into the parties' joint names although the respondent had not contributed to the purchase price. On the sale of the house £1,000 was paid to the respondent and the balance invested.The applicant contended that the Married Women’s Property Act 1882 was not a statute of general application, that the presumption of advancement in favour of the respondent had been rebutted, that there was no longer any identifiable fund in respect of which an order could be made, and finally that the post-nuptial settlement be varied in favour of the applicant and the child. The respondent contended that no variation should be made since in view of the applicant’s earnings, the breakup of the marriage would not affect the standard of living of either himself or the child.

HELD

(i)the test of whether a statute is of general application is whether it was a statute of general application in England on 12 August 1897;   

(ii)    the Married Women’s Property Act 1882 was such a statute; 

(iii) the circumstances of Kenya and its inhabitants do not require that married women should not beable to hold property; 

(iv)  the fact that the majority of the country’s inhabitants are subject to customary law is irrelevant as customary law is subject to any written law;

(v) as the applicant had put the house in the respondent’s name to avoid death duties the presumption of advancement to a wife had not been rebutted (Tinker v. Tinker (12) followed);

(vi)as the proceeds of the sale of the house were represented by deposits and shares there was an identifiable fund in respect of which an order could be made.

(vii) there was a post-nuptial settlement within the meaning of the Matrimonial Causes Act, s. 28(Prinsep v. Prinsep (4) followed);

(viii)    the object of variation of a post-nuptial settlement is to make proper provision for the injured spouse and the children but that the settlement should not be interfered with further than necessary for that purpose; 

(ix) on the facts the applicant had not shown a case for a variation of the settlement, as he had not shown a deterioration of his mode of life.

Order accordingly.

WANJIKU V. MACARIS [1968]  1 EA 216

FACTS

The  appellant  applied for maintenance from  the respondent under the Subordinate Courts (Separation and Maintenance) Act. She produced a marriage  certificate referring to a ceremony  of marriage in 1963, and it was not disputed that the  parties  had  cohabited  after that ceremony. It was proved, however, that the appellant had, in evidence in another case, testified that she  was  married  to  another man in 1952 or 1953.  The  magistrate  dismissed  her  application, holding that she had not proved that the respondent was her husband. On appeal to the High Court:

HELD

(i)all  that  is  required  to  rebut  the  presumption  of validity  of a marriage arising from  proof of a ceremony  followed by  cohabitation is some  evidence which leads the court to doubt the validity of the marriage in question. “Decisive evidence to the contr Spivack  (1) and Tweney v. Tweney  (2) applied); ary”  is not necessary  ( Spivack v. Spivack  (1) and Tweney v. Tweney  (2) applied);

(ii)there was no ground for disturbing the magistrate’s  assessment of the evidence.

Appeal dismissed with costs.