Wakilii

Stjernholm v Stjernholm (Divorce Cause 20 of 1954)

East African Court of Appeal · [1955] EACA 183 · 1955 Matter Remitted for Further Evidence AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Undefended divorce petition on ground of desertion
Decision
Matter adjourned to allow petitioner opportunity to adduce corroborative evidence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that in divorce petitions for desertion, the standard of proof is that the Court must be satisfied beyond reasonable doubt, applying English law of evidence rather than the Indian Evidence Act. While corroboration is not a rule of law, it is insisted upon as a matter of practice unless satisfactorily explained. The discretionary bar of unreasonable delay applies to desertion cases, though differently from adultery. The petitioner's 20-year delay was unreasonable, and his unsupported evidence failed to discharge the burden of proof. The Court would exercise discretion regarding delay and adultery but required corroborative evidence before granting decree.

Outcome

Matter adjourned to allow petitioner opportunity to adduce corroborative evidence

Facts

The petitioner married the respondent in Teneriffe in 1920. In 1926, while living in Italy with their daughter, the respondent returned to her family in Teneriffe against the petitioner's wishes, leaving the child with him. In 1927, the petitioner went to Teneriffe to plead with her to return but she refused. He then settled in Kenya with his daughter. In 1934 and 1936, he booked and paid for steamship passages for his wife, but she refused to sail. He continued writing until 1939 without reply. After being a prisoner of war, he wrote again from 1946 to 1949 without response. In 1953, he met another woman and began living with her as man and wife. He filed his divorce petition in March 1954, 28 years after the alleged desertion, admitting adultery and seeking the Court's discretion.

Issues

  1. What is the standard of proof required in a divorce petition based on desertion?
  2. Whether corroboration of the petitioner's evidence is necessary as a rule of law or as a matter of practice in desertion cases?
  3. Whether the discretionary bar of unreasonable delay applies to desertion cases as it does to adultery cases?
  4. Whether the Indian Evidence Act 1872 or English law of evidence applies to matrimonial causes in Kenya?
  5. Whether the Court should exercise discretion in favour of the petitioner despite his admitted adultery and unreasonable delay?

Orders

  • Petition not dismissed but proof not accepted as sufficient.
  • Petitioner given liberty to apply to open up proof and adduce further corroborative evidence.
  • Petitioner may apply for a date for continued hearing.

Rules and key headnotes

Evidence — Matrimonial Causes — Applicable Law of Evidence
In matrimonial causes in Kenya, section 3 of the Matrimonial Causes Ordinance applies English law including English adjectival law of evidence, thereby excluding the local law of evidence contained in the Indian Evidence Act 1872.
Divorce — Standard of Proof — Desertion
A divorce court exercises civil and not criminal jurisdiction. The standard of proof in desertion cases is that the Court must be satisfied beyond reasonable doubt, but this standard derives from the gravity and public importance of dissolving marriage and affecting status, not from any analogy to criminal law.
Evidence — Burden of Proof — Matrimonial Causes — Variables
The burden of proof in divorce consists of multiple factors: the petitioner must satisfy the Court that it is justified as a matter of public policy to pass a decree in rem affecting status; in desertion there is a presumption against breach of solemn contract which must be rebutted; the petitioner must adduce sufficient evidence to enable the Court to feel sure it is not acting contrary to public interest in dissolving marriage.
Evidence — Corroboration — Desertion — Practice
In divorce for desertion, corroboration of the petitioner's evidence, while not a rule of law, is insisted upon as a matter of practice, unless the petitioner can explain to the satisfaction of the Court why he is unable to adduce corroborative evidence.
Divorce — Discretionary Bar — Unreasonable Delay — Desertion
The statutory discretionary bar of unreasonable delay in section 9 proviso (a) of the Matrimonial Causes Ordinance applies to desertion cases, though the principles differ from adultery. The Court will look to a time when reconciliation must have appeared to the petitioner so improbable as to be beyond hope, then consider if delay thereafter was unreasonable. Unreasonable delay raises a presumption of acquiescence, insensibility to loss of the spouse, and even that no desertion took place.
Divorce — Discretion — Exercise — Adultery and Delay
Where a petitioner has delayed unreasonably for 20 years in presenting a desertion petition and has confessed to adultery expressing a wish to remarry, the Court may be prepared to exercise discretion in the petitioner's favour on both grounds, but only if the petitioner discharges the burden of proof through corroborated evidence.

Legislation cited (7)

  • Matrimonial Causes Ordinance, Cap. 145 s.9
  • Matrimonial Causes Ordinance, Cap. 145 s.3
  • Indian Evidence Act 1872
  • Matrimonial Causes Rules r.1(2)
  • East Africa Order in Council 1897 Art.11(b)
  • Kenya (Colony) Order in Council 1921 Art.11
  • Indian Acts (Amendment) Ordinance, Cap. 2 s.4

Cases cited (38)

  • Queen Empress v Kartick Chunder Das (1887) I.L.R. 14 Cal. 721
  • Ram Lekraj Kuar v Baboo Mahpal Singh (1879) 7 I.A. 70
  • Empress v Ashootosh Chukerbulty (1879) I.L.R. 4 Cal. 483
  • Statham v Statham (1929) P. 131
  • Thompson v Rex (1918) A.C. 221
  • Churchman v Churchman (1945) P. 44
  • Pratt v Pratt (1939) A.C. 417
  • Weatherly v Weatherly (1947) A.C. 628
  • Ginesi v Ginesi (1948) P. 180
  • Rix v Rix (1777) 3 Hagg. Ecc. 74
  • Loveden v Loveden (1810) 2 Hag. Con. 1
  • Fairman v Fairman (1949) 1 A.E.R. 938
  • Davis v Davis (1950) P. 125
  • Lauder v Lauder (1949) P. 277
  • Gower v Gower (1950) 1 A.E.R. 804
  • Preston Jones v Preston Jones (1951) L.R. 391
  • Russell v Russell (1924) A.C. 687
  • Mordaunt v Moncreiffe (1874) L.R. 2 Sc. & D. 374
  • Bater v Bater (1951) P.D. 35
  • England v England (1953) P. 16
  • Galler v Galler (1954) P. 252
  • McNeill v McNeill (1952) 19 E.A.C.A. 89
  • Daws v Daws 27 K.L.R. 125
  • Briginshaw v Briginshaw (1938) 60 C.L.R. 336
  • Wright v Wright (1949) 77 C.L.R. 191
  • Judd v Judd (1907) P. 241
  • Joseph v Joseph (1915) P. 122
  • Williams v Williams (1932) 147 L.T.R. 220
  • Church v Church (1952) P. 313
  • Lowe v Lowe (1952) 2 T.L.R. 505
  • Blunt v Blunt (1943) A.C. 517
  • Mortimer v Mortimer (1820) 2 Hag. Con. 308
  • Johnson v Johnson (1901) P. 193
  • Rickard v Rickard and Bond (1921) 37 T.L.R. 511
  • Binney v Binney and Hill (1936) 52 T.L.R. 482
  • Newman v Newman (1870) L.R. 2 P. & D. 57
  • Stevenson v Stevenson and Lane (1947) W.N. 83
  • Crump v Crump and Webb (1957) 107 L.J. N.S. 377

Full judgment

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Stjernholm v Stjernholm (Divorce Cause 20 of 1954) [1955] EACA 183 (1 January 1955)
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.