Wakilii

In the matter of Patel and In the matter of an application for the issue of directions in the nature of habeas corpus, Section 387 of the Criminal Procedure Code (Miscellaneous Criminal Application No. 17 of 1948)

East African Court of Appeal · [1948] EACA 91 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to make absolute an order nisi for a writ of habeas corpus following deportation order
Decision
Applicant remained subject to deportation order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the applicant, a British Indian by birth who resided in Kenya from 1941 to 1946, had not acquired a Kenya domicile of choice. To establish a change of domicile, there must be animus manendi accompanied by acts illustrating and enforcing the change of mind, and residence sine animo revertendi. The applicant's ex post facto declaration of intention, made after a deportation order, was unsupported by sufficient acts demonstrating permanent settlement. The application for habeas corpus was dismissed.

Outcome

Applicant remained subject to deportation order

Facts

The applicant, a British Indian, arrived in Kenya on 16 August 1941 at age 19 and worked as a motor mechanic until July 1946. He lived with his cousin and remained unmarried. In July 1946, he was commissioned to take motor vehicles to Tanganyika, where he became involved in a motor accident leading to charges of manslaughter and robbery with violence. He was convicted and sentenced to two years' imprisonment by the High Court of Tanganyika. On 6 May 1948, the Governor of Kenya deemed him an undesirable immigrant under the Immigration Restriction Ordinance. Upon release from prison on 23 July 1948, he was brought to Mombasa under police escort and wrongfully detained. After release under a writ of habeas corpus on 30 July 1948, he was served with a notice to leave the Colony within 20 days. He failed to comply, and on 23 September 1948, the Member for Law and Order ordered his arrest and detention pending deportation. The applicant claimed he had acquired a Kenya domicile of choice based on his declared intention to settle permanently and his residence from 1941 to 1946. His father and brother had also come to Kenya and were trading at Kitale.

Issues

  1. Whether the applicant had acquired a Kenya domicile of choice so as to be immune from deportation under the Immigration (Control) Ordinance, 1948.
  2. What tests must be applied to determine whether a domicile of origin has been superseded by a domicile of choice.
  3. Whether the applicant's declared intention to settle permanently in Kenya, coupled with his residence between 1941 and 1946, was sufficient to establish a domicile of choice.

Orders

  • Application dismissed.
  • Order nisi discharged.

Rules and key headnotes

Immigration — Domicile of Choice — Tests for Acquisition
To prove a change of domicile is a question of fact and every case must be decided on its own facts. The onus is upon the person asserting a change of domicile to prove that he has acquired a domicile of choice.
Immigration — Domicile of Choice — Animus Manendi and Acts
To ascertain that a domicile of choice has been acquired, there must be animus manendi accompanied by acts which illustrate and enforce the change of mind. The animus manendi must be accompanied by acts showing that it was more than a mere intention, and in order to change the domicile of origin there must be a residence sine animo revertendi.
Immigration — Domicile of Choice — Burden of Proof
A declaration of intention to acquire a domicile of choice, made ex post facto a deportation order and unsupported by accompanying acts demonstrating permanent settlement, constitutes the lowest species of evidence and is insufficient to discharge the heavy burden of proving abandonment of domicile of origin.
Immigration — Deportation — Domicile as Defence
A person subject to a deportation order under the Immigration (Control) Ordinance, 1948, cannot successfully challenge the legality of the order unless he has acquired a domicile of choice in the territory from which deportation is sought.

Legislation cited (5)

  • Criminal Procedure Code s.387
  • Immigration Restriction Ordinance (Cap. 62) s.5(d)
  • Immigration Restriction (Amendment) Ordinance, 1930 s.7
  • Immigration (Control) Ordinance, 1948 (Ord. 7 of 1948) s.9
  • Age of Majority Ordinance, 1933 (Ord. XVI of 1933) s.4

Cases cited (12)

  • Taylor v Taylor (11 EACA 46)
  • Attorney General v Yule and Mercantile Bank of India (145 LT 14)
  • Boldrini v Boldrini (146 LT 121)
  • Stanley v Barnes (3 Hagg Ecc 373)
  • Bryce v Bryce (1933 LR Probate Division 83)
  • King v King (7 EACA 1)
  • Zimbler v Zimbler (15 EACA 10)
  • Devonshire v Devonshire (14 EACA 25)
  • Winans v Attorney General [1904] AC 287
  • Miscellaneous Criminal Application No. 15 of 1948
  • Misc. Criminal Application No. 16 of 1948
  • Devonshire v Devonshire (Civil Appeal No. 17 of 1947)

Full judgment

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In the matter of Patel and In the matter of an application for the issue of directions in the nature of habeas corpus, Section 387 of the Criminal Procedure Code (Miscellaneous Criminal Application No. 17 of 1948) [1948] EACA 91 (1 January
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.