Wakilii

Finch v Finch and Another (Divorce Cause No. 19 of 1954)

East African Court of Appeal · [1955] EACA 202 · 1955 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by summons in chambers to transfer a divorce decree with costs order to Tanganyika for execution
Decision
Application to transfer divorce decree with costs order to Tanganyika dismissed for lack of jurisdiction and reciprocity

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the Judgments Extension Ordinance provides for transfer of decrees for debt, damages, and costs only, not decrees of divorce. An order for costs in divorce proceedings remains an order, not a decree, and cannot be transferred under the Ordinance. No reciprocity exists between Kenya and Tanganyika for enforcement of such orders. The application was dismissed.

Outcome

Application to transfer divorce decree with costs order to Tanganyika dismissed for lack of jurisdiction and reciprocity

Facts

The petitioner obtained a decree of divorce with costs against her husband in the Supreme Court of Kenya. The husband failed to pay the costs and left Kenya for Tanganyika, where he obtained employment in Dar-es-Salaam. The petitioner applied by summons in chambers for an order to transfer the decree with a certificate of non-satisfaction to the Resident Magistrate's Court at Dar-es-Salaam for execution. The court examined whether the Judgments Extension Ordinance permitted such transfer and whether reciprocity existed between Kenya and Tanganyika for enforcement of costs orders in divorce proceedings.

Issues

  1. Whether an order for costs in divorce proceedings constitutes a decree capable of transfer for execution under the Judgments Extension Ordinance.
  2. Whether reciprocity exists between Kenya and Tanganyika for the transfer of orders for costs in divorce proceedings.
  3. Whether a decree of divorce itself can be transferred for execution to Tanganyika under the Judgments Extension Ordinance.

Orders

  • Application dismissed.
  • None of the costs thrown away to be charged against the respondent.

Rules and key headnotes

Family Law — Divorce — Costs Orders — Nature and Enforcement
Orders for costs made in divorce proceedings do not result in decrees but remain merely orders, both in England and in Kenya.
Civil Procedure — Judgments Extension — Scope of Transferable Decrees
The Judgments Extension Ordinance provides for reciprocity between Kenya and Tanganyika for the transfer for execution of decrees for debt, damages, and costs only, and for no other sort of decree. A decree of divorce is a decree of another sort and its transfer is not provided for.
Civil Procedure — Reciprocity — Enforcement of Foreign Orders
Before a court can make an order transferring a decree to another jurisdiction for enforcement, it must be satisfied that the courts in that jurisdiction have jurisdiction to receive it, which requires investigation of the reciprocal law obtaining between the two jurisdictions.
Family Law — Matrimonial Causes — Jurisdiction and Procedure
Jurisdiction in matrimonial causes has no emergence in common law or equity and does not stem from the application to Kenya of any Order in Council but is statutory, depending upon the Matrimonial Causes Ordinance, which applies the law of England subject to local provisions and rules.
Administrative Law — International Private Law — Reciprocity Requirements
An order for costs in a divorce proceeding falls within the definition of 'judgment' for the purposes of section 12(1) of Part II of the Administration of Justice Act 1920, which was extended to Kenya with reciprocity found in the Judgments Extension Ordinance Part I. However, no reciprocal legislation exists in Tanganyika, nor has Part I of the Kenya Ordinance been applied by proclamation to Tanganyika.

Legislation cited (13)

  • Judgments Extension Ordinance Cap. 14 (Kenya)
  • Judgments Extension Ordinance Cap. 7 (Tanganyika)
  • Administration of Justice Act 1920 Part II s.12(1)
  • Administration of Justice Act 1920 s.13
  • Administration of Justice Act 1920 s.14
  • Matrimonial Causes Ordinance Cap. 145 s.3
  • Matrimonial Causes Ordinance s.35
  • Civil Procedure Ordinance s.28
  • Civil Procedure Ordinance s.2
  • Civil Procedure Ordinance s.81
  • Supreme Court Judicature (Consolidation) Act 1925 s.50
  • Matrimonial Causes Rules rule 66(1)
  • Matrimonial Causes Rules rule 81

Cases cited (3)

  • Ivimey v Ivimey (1908) 2 KB 260
  • Morse v Muir (1939) 2 KB 106
  • Richardson v Richardson (1927) P 188

Full judgment

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Finch v Finch and Another (Divorce Cause No. 19 of 1954) [1955] EACA 202 (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.