Wakilii

Mary Devonshire v Claude Devonshire (Civil Appeal No. 17 of 1947)

East African Court of Appeal · [1947] EACA 7 · 1947 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from dismissal of divorce petition by Supreme Court of Kenya
Decision
Petition for dissolution of marriage dismissed; no decree granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the petitioner had established her husband's domicile of choice in Kenya through twelve years' continuous residence, disposal of property in England, and sworn evidence of intention to remain permanently, applying the principle from King v King that bona fide intention coupled with actual residence of some duration suffices absent contrary circumstances. However, the appeal was dismissed because adultery was not proved: the evidence of the single witness was insufficient, and alleged admissions on served documents were not made evidence in the suit and were properly disregarded by the trial judge.

Outcome

Petition for dissolution of marriage dismissed; no decree granted

Facts

The parties married in England on 1 July 1933 and resided there until August 1935. The husband sold his house in England and came to Kenya in August 1935, where he obtained employment as a coffee liquorer with the Coffee Board of Kenya. He remained in that employment and resided continuously in Kenya from 1935 until the hearing in 1947. On 28 May 1947, the wife petitioned for dissolution of marriage on grounds of adultery with a named woman. The husband testified that he came to Kenya hoping to settle, that this hope became a fixed intention shortly after arrival, and that he intended to remain in Kenya permanently. He had no property in Kenya or England. The trial judge dismissed the petition on two grounds: failure to prove Kenya domicile and insufficient proof of adultery. The petitioner appealed.

Issues

  1. Whether the petitioner established that her husband had acquired a domicile of choice in Kenya, thereby conferring jurisdiction on the Supreme Court of Kenya to grant a decree of dissolution of marriage.
  2. Whether adultery was proved on the evidence adduced.
  3. Whether alleged admissions of adultery endorsed on copies of the petition served on the respondent and co-respondent could be admitted as evidence without being formally proved.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Divorce — Jurisdiction — Domicile of Choice — Proof Required
Where there is accepted evidence of a bona fide intention to make a permanent home in Kenya coupled with actual residence of some duration and there is nothing in the surrounding circumstances which suggests that this is not a real and valid intention, the Court will not look to probabilities based on the happening of some future hypothetical event as negativing the evidence of a present intention to remain permanently in Kenya.
Divorce — Domicile — Wife's Domicile Follows Husband
Under the Matrimonial Causes Ordinance 1939, no decree for dissolution of marriage can be entered unless the parties possess a Kenya domicile, either of origin or choice. The domicile of a wife follows that of her husband.
Divorce — Proof of Adultery — Admissions Not Formally Proved
Evidence of misconduct by affidavit will not be admitted in divorce proceedings save in exceptional circumstances. Alleged admissions of adultery appearing as endorsements on copies of a petition served on parties, but not made evidence in the suit through proper proof, must be disregarded by the court.
Appeal — Fresh Evidence — Circumstances for Admission
An appellate court will not admit fresh evidence that was readily available at trial but which the party elected not to call. To allow retrial where a petitioner failed to prove their case but might succeed if given a second chance would establish an improper precedent.
Divorce — Domicile — Factors Indicating Acquisition of Domicile of Choice
Factors tending to show acquisition of domicile of choice include continuous residence for a substantial period, disposal of property in the country of origin, absence of property or family ties in the country of origin, and sworn evidence of intention to make the new country a permanent home. The burden of proof should not be so heavy as to be unbearable, and proof requirements should not unfairly favour wealthy persons over those with limited property.

Legislation cited (4)

  • Matrimonial Causes Ordinance 1939
  • Indian and Colonial Divorce Jurisdiction Acts 1926
  • Indian and Colonial Divorce Jurisdiction Acts 1940
  • Civil Procedure Rules 1927 Order XVII Rule 1

Cases cited (5)

  • King v King (VII E.A.C.A. 1)
  • Nash v Rochford Rural Council [1917] 1 KB 384
  • Sanders v Sanders (1881) 19 Ch D 380
  • Shoe Machinery Co v Culton [1896] 1 Ch D 108
  • Annesley [1926] 1 Ch 692

Full judgment

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

Mary Devonshire v Claude Devonshire (Civil Appeal No. 17 of 1947) [1947] EACA 7 (1 January 1947)
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.