Wakilii

King v King and Another (Civil Appeal No. 17 of 1939)

East African Court of Appeal · [1940] EACA 1 · 1940 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya dismissal of divorce petition on grounds of insufficient proof of domicil
Decision
Decree nisi for dissolution of marriage granted to the petitioner

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the petitioner had acquired a domicil of choice in Kenya at the time of presenting his divorce petition. The evidence established actual residence coupled with an intention to settle permanently in Kenya to the exclusion of his English domicil of origin. The possibility that future events might cause him to leave Kenya does not negate his present intention of permanent residence. The trial judge erred in dismissing the petition based on speculation about what might happen if the petitioner's son were transferred to another colony.

Outcome

Decree nisi for dissolution of marriage granted to the petitioner

Facts

The petitioner, Frederick King, filed a divorce petition in the Supreme Court of Kenya under the Divorce Ordinance. He claimed to be domiciled in Kenya, having resided there with his son and formed an intention to make Kenya his permanent home, abandoning his English domicil of origin. The trial judge dismissed the petition, not because he disbelieved the petitioner's evidence, but because he was not satisfied that a Kenya domicil had been proved. The judge was influenced by speculation about what might happen if the petitioner's son were transferred to another colony in the future. The petitioner had no family ties or property elsewhere. The co-respondent was Thomas Smith, with whom adultery was alleged.

Issues

  1. Whether the petitioner had acquired a domicil of choice in Kenya at the time of presenting his divorce petition.
  2. Whether a possible future contingency that might cause the petitioner to leave Kenya negatives his present intention to remain permanently in Kenya.

Orders

  • Appeal allowed.
  • Decree nisi for dissolution of marriage pronounced, not to be made absolute before six months from 22 February 1940.
  • Costs in the Court of Appeal and Supreme Court awarded against the co-respondent.
  • No order as to custody of child given his age of 19 years.

Rules and key headnotes

Divorce — Domicil of Choice — Requirements for Acquisition
To acquire a domicil of choice, there must be actual residence in the new country coupled with a fixed intention of permanent residence, abandoning the domicil of origin. The intention must be to reside for a period not limited as to time, and provided the intention is established, it matters not how short the residence may have been.
Divorce — Domicil of Choice — Effect of Future Contingencies
A bare possibility that future events may cause a person to leave a country does not negate his present intention of permanent residence. The court must determine the person's intention at the time of presenting the petition, not speculate about what might happen in the future.
Divorce — Domicil of Choice — Floating Intention to Return
If a person has actually removed to another place with the intention of remaining there for an indefinite time as a place of fixed present domicil, it is to be deemed his place of domicil notwithstanding he may entertain a floating intention to return to his native country at some future period.
Divorce — Domicil of Choice — Evidence and Burden of Proof
Where a person asserting domicil in a particular country gives direct evidence in support of that assertion, such cases are different from succession cases where the deceased person is no longer available to give evidence. Direct testimony from a living person claiming domicil is entitled to weight, particularly where there is no reason to disbelieve it and the probabilities support the assertion.

Legislation cited (2)

  • Divorce Ordinance
  • Indian and Colonial Divorce Jurisdiction Act s.1(1)(d)

Cases cited (3)

  • Bell v Kennedy (L.R. 1 Sc. & Div. 307)
  • King v Foxwell (3 Ch.D. 518)
  • In re Capdevielle (33 L.J.Ex. 306)

Full judgment

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

King v King and Another (Civil Appeal No. 17 of 1939) [1940] EACA 1 (1 January 1940)
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.