[1940] EACA 1

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganyika).

FREDERICK KING, Appellant (Original Petitioner)

ELSIE MAY RIGBY KING and THOMAS SMITH, Respondents (Original Respondent: and Co-respondent)

Civil Appeal No. 17 of 1939

(Appeal from decision of H. M. Supreme Court of Kenya)

Divorce—Domicil of choice—Acquisition of domicil in Kenya.

The evidence disclosed that at the time of the presentation of a petition for dissolution of marriage under the Divorce Ordinance the petitioner was resident in Kenya and had formed an intention permanently to reside and make a home for himself and his son in Kenya to the exclusion of his domicil of origin, which was in England or any other place. The trial judge did not reject this evidence but dismissed the petition on the ground that the petitioner had failed to satisfy him of his Kenya domicil and the learned judge was influenced in his decision by the question as to what might possibly happen in the event of the petitioner's son being transferred to another Colony.

The petitioner appealed.

Held (22-2-40).—That the evidence established that at the time of the presentation of the petition the petiitoner had acquired a domicil of choice in Kenya and that the fact that on the happening of something in the future he might possibly decide to leave Kenya did not negative his present intention of remaining permanently in Kenya.

Appeal allowed.

Figgis, K. C., for the appellant.

Respondents absent, unrepresented.

SIR JOSEPH SHERIDAN, C. J.—This is an appeal from a decision of the Supreme Court of Kenya refusing a petition for dissolution of marriage on the ground that the petitioner had not proved that he was domiciled in Kenya. At the hearing of the appeal Mr. E. K. Figgis appeared for the appellant, the respondents not appearing and not being represented. He reviewed the authorities from early times on the subject of domicil, most of which, as distinct from this case, referred to cases of succession to property and were concerned with the construction to be placed on the actions and utterances of persons who being dead were no longer available to give evidence on the subject. Such cases are manifestly different from one such as the present where the person asserting his domicil to be in a particular country gives evidence in support of his assertion. The petitioner claims to be domiciled in Kenya and it is important to remember that different from some of the cases quoted by Mr. Figgis where the allegation was that a foreign domicil had been acquired that Kenya is a British Colony and is admittedly a country in which a domicil can be easily acquired by a Britisher. Many Britishers are domiciled in Kenya. The uncontradicted evidence of the petitioner is to the effect that at the time of the institution of the suit his domicil was Kenya—in other words that he had formed an intention coupled with actual residence to settle in Kenya to the exclusion of his domicil of origin, which is England, or any other place. His evidence receives support from the fact to which I have referred that Kenya is attractive to Europeans, that he has, it would appear, neither ties of

family nor property elsewhere and the important fact that he has really nothing to gain by asserting what is false as I will proceed to show later. The learned trial Judge did not say that he disbelieved the petitioner but expressed his regret that he had failed to satisfy him that he had acquired a Kenya domicil. He appears to have been influenced in his decision by the question as to what would possibly happen to the petitioner's son, in the event of the latter being transferred to a position in some other country. On this point the petitioner replied that in such a matter when his son came of age he would be his own master presumably to decide what he, the son, would do. But in my opinion the question as to what would happen in such a contingency is beside the question at issue. What the Court has to concern itself with is what, at the time of the presentation of the petition, was the intention of the petitioner. That on the happening of something in the future he may possibly decide to leave Kenya does not negative his present intention of remaining permanently in Kenya. I have said that the petitioner has really nothing to gain in the present proceedings by falsely asserting his domicil to be Kenya rather than England. This might have been the case some years ago when, to obtain a divorce in Kenya, it was necessary to prove that one had a domicil here. But as the law stands at present a petitioner though domiciled in England may obtain a divorce in Kenya. Before filing his petition he must decide as best he can whether his domicil is his domicil of origin or whether he has acquired a Kenya domicil. According to how he decides the case will be instituted under the Indian and Colonial Divorce Jurisdiction Act or the local Ordinance. If the present petitioner had considered that his domicil was England, then his case would have been brought under the Indian and Colonial Divorce Act and the expenses connected with it would most probably not have exceeded those incidental to filing the suit under the local Ordinance. Section $1(1)(d)$ of the Indian and Colonial Divorce Act provides: —

"1. (1) Subject to the provisions of this Act, a High Court in India to which Part IX of the Government of India Act applies shall have jurisdiction to make a decree for the dissolution of a marriage, and as incidental thereto to make an order as to damages, alimony or maintenance, custody of children, and costs, where the parties to the marriage are British subjects domiciled in England or in Scotland, in any case where a court in India would have such jurisdiction if the parties to the marriage were domiciled in India.

(d) any such court may refuse to entertain a petition in such a case if the petitioner is unable to show that by reason of official duty, poverty or any other sufficient cause, he or she is prevented from taking proceedings in the court of the country in which he or she is domiciled and the court shall so refuse if it is not satisfied that in the interests of justice it is desirable that the suit should be determined in India."

## (For India read Kenya.)

There is no reason for thinking that the Court would have refused to entertain a suit under the Act if in fact the petitioner had proved an English domicil. There is therefore good reason in my opinion for holding that the petitioner has acquired a domicil in Kenya and it would seem that the learned Judge decided the case under a misapprehension that a bare possibility of the petitioner leaving Kenya in the future negatived his assertion that his present intention was to make Kenya his home.

I would allow this appeal with costs in this Court and the Supreme Court against the co-respondent and finding the act of adultery pleaded to have been proved pronounce a decree nisi not to be made absolute before six months from this date. Custody of the child is not asked for in the circumstances that he is 19 years of age.

WHITLEY, C. J.-I have had the advantage of reading the judgment of the learned President with which I am in complete agreement. The law as to domicil appears now to be well settled. In order to acquire a domicil of choice there must be clear evidence of abandonment of the domicil of origin which in the present case is England, and neither length of residence nor acquiring property in a new country is sufficient. As Lord Chelmsford observed in his judgment in Bell v. Kennedy, L. R. 1 Sc. & Div. 307, at page 319, in order to acquire a new domicil there must not only be a fixed intention of permanent residence but actual residence also and provided that the intention is established it matters not how short the residence in the new country may have been. The domicil of choice is the choice of the party and when acquired, the domicil of origin is not destroyed but is in abeyance. To acquire it he must voluntarily choose a new domicil by fixing his sole or principal residence in the new country with the intention of residing there for a period not limited as to time. The residence must be permanent and there is an inference of permanent residence from a person residing voluntarily in one place for a length of time unless there is something to rebut it. (Per Jessel M. R. in King v. Foxwell, 3 Ch. D. 518, at pages 520 and 521.) Martin B. in the case of In re Capdevielle, 33 L. J. Ex. 306, at page 312, quoted with approval the following passage in Story's Conflict of Laws, "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". It is true that in the present case the petitioner first came to Kenya for business reasons but he has stated in evidence that it is his intention to make the Colony his permanent home and I see no reason to disbelieve him. The probabilities are, as the learned President has pointed out, all in favour of that really being his intention and the learned trial judge apparently accepted his evidence.

I agree with the order proposed by the learned President.

WEBB, C. J.—I agree and have nothing to add.