Wakilii

Mahomed Hassan v Nana (Civil Appeal No. 13 of 1941)

East African Court of Appeal · [1941] EACA 4 · 1941 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya dismissing originating summons seeking custody of child
Decision
Appeal dismissed; appellant's originating summons procedure held improper

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that where a custody order was made "until further order of this Court", any subsequent application to vary that order must be brought by motion in the original proceedings under Order XLVIII Civil Procedure Rules, not by fresh originating summons. The original order remained pending and not final, and the proper procedure was to move the Court in the same proceedings rather than commence new proceedings.

Outcome

Appeal dismissed; appellant's originating summons procedure held improper

Facts

In 1932, the respondent grandmother was awarded custody of her infant granddaughter (the appellant father's daughter) until further order of the Court, on the ground that under Mohamedan law the maternal grandmother was the proper guardian until the child attained seven years, the mother being deceased. In September 1932, the appellant's motion to vary that order on grounds of the respondent's unsuitability was refused. In 1941, when the child was twelve years old, the appellant brought fresh proceedings by originating summons seeking custody during minority or until marriage. The Supreme Court dismissed the application on the ground that the procedure was wrong, holding that the application should have been by motion in the original petition proceedings rather than by originating summons.

Issues

  1. Whether proceedings seeking variation of a custody order should be commenced by originating summons or by motion in the original petition proceedings.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.
  • Costs of copying the record of Civil Case 65/1932 to be borne by the respondent.

Rules and key headnotes

Civil Procedure — Custody Applications — Procedure for Varying Existing Orders
Where a court has made a custody order expressed to be "until further order of this Court", any subsequent application to vary that order must be brought by motion in the original proceedings, not by fresh originating summons commencing new proceedings.
Civil Procedure — Originating Summons — Scope and Limitations
An originating summons cannot be used to vary an existing undischarged court order where there are pending proceedings; the proper procedure is by motion under Order XLVIII Civil Procedure Rules in the original proceedings.
Family Law — Custody of Children — Variation of Custody Orders
A custody order made "until further order" is not a final order but remains pending and liable to variation in proper circumstances; a refusal of one application to vary does not convert the original order into a final order.

Legislation cited (5)

Full judgment

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Mahomed Hassan v Nana (Civil Appeal No. 13 of 1941) [1941] EACA 4 (1 January 1941)
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.