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.