Krishan v Kumari (Civil Proceeding No. 344 of 1954)
East African Court of Appeal
· [1955] EACA 9
· 1955
Preliminary Objection Partly Allowed
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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 an application for custody of a child of a Hindu marriage does not fall under the Hindu Marriage, Divorce and Succession Ordinance, which governs matrimonial causes, not bare custody claims. The proper procedure is by originating summons or petition under Part VI of the Rules of Court, derived from Chancery practice applied to Kenya by the Orders in Council. Procedure by petition was competent, though originating summons is ordinarily preferable for summary applications. The inherent jurisdiction could not be invoked where express procedural provisions existed. The Court had jurisdiction to entertain the petition.
Outcome
Petition allowed to proceed; preliminary objections partly upheld and partly dismissed
Facts
A Hindu man separated from his wife applied by petition for custody of the child of the marriage, invoking the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149, and the inherent jurisdiction of the Court. The wife raised preliminary objections that the only competent procedure was by plaint under the Civil Procedure Ordinance, that the petition could not be instituted under Cap. 149, and that proceedings under Cap. 149 could not be combined with proceedings under the inherent jurisdiction. The Court was required to determine the proper procedure for applications for custody of children and whether it had jurisdiction to entertain the petition.
Issues
- Whether an application simpliciter for custody of a child of a Hindu marriage falls within the jurisdiction of the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149.
- Whether procedure by petition is competent for an application for custody of a child, or whether proceedings must be commenced by plaint under the Civil Procedure Ordinance.
- Whether the Court has inherent jurisdiction to entertain an application for custody of a child where express procedural provisions exist.
- What is the proper procedure for approaching the Court for an order for custody of a child under Kenya law.
Orders
- Preliminary objection that proceedings should have been commenced by plaint dismissed.
- Preliminary objection that petition could not be instituted under Cap. 149 upheld.
- Preliminary objection that proceedings under Cap. 149 could not be combined with inherent jurisdiction upheld.
- Court ruled it had jurisdiction to entertain the petition under Part VI of the Rules of Court.
- Costs of the debate on preliminary points of law reserved for argument.
Rules and key headnotes
Family Law — Custody of Children — Jurisdiction — Hindu Marriage, Divorce and Succession Ordinance
An application simpliciter for the custody of a child of a Hindu marriage is not a claim which affects a Hindu marriage so as to bring the procedure under the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149. While ancillary orders for custody may be competent in a matrimonial cause properly brought under the Ordinance, the Ordinance gives no jurisdiction to make a bare and single order for custody of a child.
Family Law — Custody of Children — Applicable Law — Personal Law versus Common Law
Questions concerning the custody of children are determined by the common law and equity of England, not by the personal religious law of the parties. While personal law governs the interpretation of non-monogamous contracts of marriage entered into under Hindu law and custom, it is neither applied by the Hindu Marriage Ordinance nor suitable to determine questions of custody of children of whatever race or religion in a British possession.
Civil Procedure — Custody Applications — Procedure — Historical Development
Procedure for obtaining orders for custody of children has existed in Kenya since the East Africa Order in Council, 1897, Article 15, which applied the common law and equity of England and the powers, procedure and practice of English Courts as at 12 August 1897. Part VI of the Rules of Court, made under the East Africa Orders in Council of 1902 and 1906, provides the applicable procedure, modelled on Order 55 of the Rules of the Supreme Court of England.
Civil Procedure — Custody Applications — Competent Modes of Approach
The remedies available to obtain custody of a child are a writ of habeas corpus under the applied common law, an order upon a petition under Chancery procedure, or an originating summons under Part VI, rule 2(5) of the Rules of Court. Approach by summons is the proper mode when brevity of pleading is indicated, but where it is essential to condescend at length upon facts, petition is the preferable mode.
Civil Procedure — Inherent Jurisdiction — Limits
A Court is deemed to possess as inherent in its constitution all powers necessary to do right and undo wrong in the course of justice. However, where there are express provisions of law applicable to a particular case, there is no inherent power in the Court to override them, for that would amount to a repeal of the provisions. The inherent power of the Court only exists where there are no express provisions of law applicable to the case.
Statutory Interpretation — Civil Procedure Ordinance — Definition of 'Suit' — Miscellaneous Proceedings
A 'suit' as defined by the Civil Procedure Ordinance, Cap. 5, is civil proceedings commenced in accordance with Rules prescribed by the Rules Committee constituted by that Ordinance. It was not the intention of the Ordinance that each and every civil proceeding must necessarily be commenced with presentation of a plaint. Section 89 clearly contemplated that the Supreme Court might entertain civil proceedings which were not suits and which might conclude with an order and not with a decree, and such an order might be made under a special or local law as envisaged by section 79(b) and might originate in the manner prescribed or indicated historically by such other law, which would comprehend an Order in Council or Rules of Court other than the Civil Procedure Rules.
Civil Procedure — Custody Applications — Petition versus Plaint
Procedure by petition for the custody of a child was not brought to an end by the enactment of the Civil Procedure Ordinance which applied its rules only 'so far as applicable'. To the contrary, procedure by petition was indicated by another law, namely the Orders in Council and Part VI of the Rules of Court. The Civil Procedure Ordinance does not provide specifically to limit the power or jurisdiction of the Court in relation to custody of children conferred by the Orders in Council, nor does it limit the special procedure prescribed by those Orders and the Rules of Court.
Legislation cited (16)
- Hindu Marriage, Divorce and Succession Ordinance, Cap. 149
- Civil Procedure Ordinance, Cap. 5 s.89
- Civil Procedure Ordinance, Cap. 5 s.79(b)
- Civil Procedure Ordinance, Cap. 5 s.97
- East Africa Order in Council, 1897 Article 15
- East Africa Order in Council, 1902 Article 22
- East Africa Order in Council, 1906 Article 11
- Kenya Colony Order in Council, 1921 Article 4(2)
- Custody of Children Ordinance, 1926
- Custody of Children Act, 1891
- Guardianship of Infants Acts, 1868
- Guardianship of Infants Acts, 1925
- Indian Civil Procedure Code, 1877 s.647
- Indian Civil Procedure Code, 1908 s.141
- Revised Edition of Laws Ordinance, 1948 s.7
- Revised Edition of Laws Ordinance, 1948 s.10
Cases cited (26)
- Gulam Mahomed v Hadayat Bibi (1922) 9 EALR (EACA) 76
- Shariff Abdulla bin Mohammed v Zwena binti Abeda (Court of Appeal No. 20 of 1953)
- Mohamed Hassan v Nana binti Mzee (1944) 11 EACA 4
- Narsingh Das v. Mangal Dubey, (1883) I.L.R. 5 All. 163
- R. v. De Manneville, (1804) 5 East. 221
- ex parte McClellan, (1831) 1 Dowl. 81
- ex parte Witte, (1853) 13 C.B. 681
- ex parte Spence, (1847) 16 L.J. Ch. 309
- Lord Raymond's Case, Cas. T. Talbot, 58
- ex parte Emerson, (1895) 11 T.L.R. 218
- Thakur Prasad v. Fakir-Ullah, (1895) I.L.R. 17 All. 106
- Ningappa v. Gangawa, (1886) I.L.R., 10 Born. 433
- Minatoonnessa Bibee v. Khantoonnessa Bibee, (1894) I.L.R. 21 Cal. 479
- Ram Gopal v. Shanti Lal, (1941) I.L.R., All. 812
- In the Goods of Lilian Singh, (1942) I.L.R. 2 Cal. 194
- In re Bethlehem & Bridewell Hospitals, (1885) 30 Ch. D. 541
- Cox, in re; Public Trustee v. Eve, (1938) 54 T.L.R. 527
- In re Hicks; ex parte The North-Eastern Railway Co., (1894) 63 L.J. Ch. (N.S.) 568
- In re the Custody of ACB, a Minor (1922) 10 KLR 70
- In re Meister, Lucius & Brunning Ltd., (1914) 31 T.L.R. 28
- Hamisi bin Ali v Mariamu binti Ali (1929) 12 KLR 51
- Nona binti Bakari v Mauwa binti Jabiri (1933) 15 KLR 63
- Solamalay v Solamalay (1941) 19 KLR 50
- Mohamed Hassan v Nana binti Mzee (1941) 8 EACA 12
- Mansion House v Wilkinson (1954) 21 EACA 98
- Saint Benoist Plantations Ltd v Felix (1954) 21 EACA 105
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Krishan v Kumari (Civil Proceeding No. 344 of 1954) [1955] EACA 9 (1 January 1955)
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