Wakilii

Bibi v Mahommed (Civil Suit No. 853 of 1954.)

East African Court of Appeal · [1955] EACA 91 · 1955 Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for dissolution of Mohammedan marriage, maintenance, and dowry brought before the Supreme Court by plaint
Decision
Matter remitted for proof of personal law to be reopened and parties permitted to set down case for continued hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that Mohammedan personal law is not part of the general law of Kenya and must be proved as a fact. Section 2 of the Indian Evidence Act, 1872, bars invocation of Mohammedan rules of evidence. The Supreme Court takes judicial notice only of personal law embodied in authoritative judicial decisions of the Privy Council, the Court of Appeal for Eastern Africa, and its own decisions. Indian court decisions not on appeal to the Privy Council are not authoritative and do not discharge the burden of proof. The proper procedure is by petition, not plaint.

Outcome

Matter remitted for proof of personal law to be reopened and parties permitted to set down case for continued hearing

Facts

Two Asian immigrants professing Islam and members of the Hanafi Sect entered into a polygamous matrimonial union in Nairobi. Both parties were resident in Kenya. The female partner approached the Supreme Court by plaint, praying for dissolution of the union, maintenance, and dowry, pleading jurisdiction by residence under the Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148. The respondent pleaded that he had already pronounced a formula dissolving the union under his sectarian law and had satisfied the claim for dowry. Both parties agreed that Mohammedan law as interpreted by the Hanafi Sect should apply but disagreed on how that law ought to be proved. Neither party called expert witnesses nor proved the treatises tendered. The Court was invited to decide whether Mohammedan personal law ranked as part of the general law of Kenya, as foreign law, or as customary law requiring strict proof.

Issues

  1. Whether Mohammedan personal law forms part of the general law of Kenya of which the Supreme Court is required to take judicial notice.
  2. Whether Mohammedan personal law must be proved as foreign law or as customary law requiring strict proof in a matrimonial cause.
  3. Whether section 3 of the Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148, applies Mohammedan rules of evidence.
  4. What standard of proof ought to prevail in proving Mohammedan personal law in a matrimonial cause.
  5. Whether the proper procedure is by petition or by plaint.

Orders

  • Proof to be reopened.
  • Parties permitted to set down the case for continued hearing.
  • Costs to date reserved.

Rules and key headnotes

Evidence — Mohammedan Personal Law — Status in Kenya — Whether Part of General Law — Burden of Proof
Mohammedan personal law not yet the subject of authoritative judicial decision has not the force of law in Kenya Colony and is not part of the general law of Kenya and must be proved in such manner as any other fact is proved under the provisions of section 60 of the Indian Evidence Act, 1872.
Evidence — Mohammedan Rules of Evidence — Application in Kenya — Indian Evidence Act, 1872
Section 2 of the Indian Evidence Act, 1872, applied to the Colony, bars invocation of the Mohammedan rules of evidence and section 3 of the Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148, does not intend to apply these rules.
Evidence — Judicial Notice — Personal Law Embodied in Authoritative Decisions
So soon as any fragment of personal law is defined by reason of an authoritative judicial decision it becomes part of the general law of the Colony. The Supreme Court takes judicial notice of facets of personal law embodied in decisions of the Privy Council, the Court of Appeal for Eastern Africa and its own decisions and such facets need no longer be proved.
Evidence — Indian Court Decisions — Status in Kenya — Not Authoritative
Decisions of the Indian Courts defining personal law, not on appeal to the Privy Council, have not the force of law in nor form part of the general law of Kenya. Mere citation of any such decisions does not take the place of proof of personal law nor discharge the onus of proof resting on the proponor nor does the Supreme Court take judicial notice of any fact of customary law contained in any such decision.
Evidence — Proof of Personal Law — Methods — Expert Witnesses and Treatises
Evidence of personal law may be given by the opinions of experts expressed in any treatise, commonly offered for sale, on the mere production of the treatise, as provided by section 60 of the Indian Evidence Act, but the burden of proving that the treatise is admissible is upon the person preferring it under section 60 as well as under section 104.
Constitutional Law — Kenya Colony Order-in-Council, 1921 — Article 4 — Jurisdiction of Supreme Court — Application of Personal Law
While Article 4(1) of the Kenya Colony Order-in-Council, 1921, gave to the Supreme Court as ample a positive original jurisdiction as could be conceived by English jurisprudence, Article 4(2) proceeded to restrict that jurisdiction by applying certain positive law to the Colony and, in a negative manner, enjoined a discretion not to apply positive law where the result would be contrary to natural justice and equity. The intention of the general law that the discretion be exercised does not result in the whole cadre of personal law of whatsoever immigrant becoming part of the general law of Kenya by the mere fact of his immigration.
Civil Procedure — Mohammedan Matrimonial Causes — Procedure — Petition or Plaint
The use of the word 'petitioner' by the Mohammedan Marriage, Divorce and Succession Ordinance and the use of the word 'petition' in the Rules of Court suggests origination by petition and not by plaint.

Legislation cited (17)

  • Kenya Colony Order-in-Council, 1921, Article 4(1)
  • Kenya Colony Order-in-Council, 1921, Article 4(2)
  • Indian Evidence Act, 1872, s.2
  • Indian Evidence Act, 1872, s.38
  • Indian Evidence Act, 1872, s.48
  • Indian Evidence Act, 1872, s.49
  • Indian Evidence Act, 1872, s.51
  • Indian Evidence Act, 1872, s.56
  • Indian Evidence Act, 1872, s.57
  • Indian Evidence Act, 1872, s.60
  • Indian Evidence Act, 1872, s.58
  • Indian Evidence Act, 1872, s.104
  • Indian Evidence Act, 1872, s.138
  • Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148, s.3
  • Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148, s.3(4)
  • Mohammedan Marriage, Divorce and Succession Ordinance, Cap. 148, s.7
  • Civil Procedure Ordinance, Cap. 5, s.87

Cases cited (17)

  • Aziz Bano v. Muhammad Ibrahim Husain (1925) I.L.R. 47 All. 838
  • Bhagwan Singh v. Bhagwan Singh I.L.R. 21 All. 412
  • Mazhar Ali v. Budh Singh (1885) 7 All. 297
  • Abdulla bin Abdurrehman v. Abdulla bin Hamad (1899) 1 E.A.L.R. 11
  • Secretary of State for Foreign Affairs v. Charlesworth Pilling & Co. (1900) 1 E.A.L.R. 24
  • Gulam Mahomed v. Gulam Fatima (1916) 6 E.A.L.R. 119
  • Halimabai v. Abdarahim Haji Ismail Mithu (1904) 5 E.A.L.R. (E.A.C.A.) 130
  • Fazalan Bibi v. Tehran Bibi (1921) 8 E.A.L.R. (E.A.C.A.) 200
  • Gulam Mohamed v. Hadayat Bibi (1922) 9 E.A.L.R. (E.A.C.A.) 76
  • Hyde v. Hyde and Woodmansee (1866) L.R. I P. & D. 130
  • Nachimson v. Nachimson (1930) P. 217
  • Ali Karmali v. Hirbhai binti Sanji Nagji (1943) 10 E.A.C.A. 13
  • Mistry Amar Singh v. Hazara Singh (1946) 13 E.A.C.A. 18
  • Fatuma Bachoo v. Majothi Kara Juma Bolia (1946) 13 E.A.C.A. 50
  • Maleksultan w/o Sherali Jeraj v. Sherali Jeraj (1955) 22 E.A.C.A. 142
  • Masood bin Said v. Said bin Salim bin Mohammed Ghulum (1954) 21 E.A.C.A. 1
  • Stjernholm v. Stjernholm (1955) 28 K.L.R. 183

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Bibi v Mahommed (Civil Suit No. 853 of 1954.) [1955] EACA 91 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.