[1947] EACA 7

#### COURT OF APPEAL FOR EASTERN AFRICA

### Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and $ED$ WARDS, C. J. (Uganda)

# MARY EDWARD DEVONSHIRE. Appellant v

## CLAUDE REYNOLDS DEVONSHIRE, Respondent

#### Civil Appeal No. 17 of 1947

### (Appeal from decision of H. M. Supreme Court of Kenva)

Divorce—Matrimonial Causes Ordinance, 1939—Jurisdiction—Domicile—Adultery -Proof of-Evidence.

On 28th May, 1947, a wife petitioned for a decree of dissolution of marriage under the Matrimonial Causes Ordinance, 1939, on the ground of her husband's adultery with a named woman. The parties were married on 1st July, 1933, in England where they had their domicile of origin and where they resided until August, 1935. The husband owned a house in England and worked with an English firm in the coffee business. Sometime in 1935 he sold his house and in August of that year came to Kenva with his wife where he obtained employment as a coffee liquorer with the Coffee Board of Kenya. He continuously resided in Kenya and remained in the same employment from the time of his arrival here till the hearing of the petition. The husband testified at the hearing that he had come to Kenya with a hope that he might settle here and that soon after his arrival his hope had become a fixed intention. He asserted that it was still his intention to settle in Kenya and to make Kenya his home. He had no property in Kenya. The petition was dismissed on the ground that the petitioner had failed to discharge the burden of proving that she was domiciled in Kenya. On the question of adultery the learned Judge found that the evidence was inconclusive and disregarded certain alleged admissions of adultery by the husband and woman named which appeared in the form of endorsements on the copies of the petition served on them, those alleged admissions not having been made evidence in the suit.

The petitioner appealed.

Held (20-8-47)—(1) That applying the principle laid down in King v. King VII E. A. C. A. p. 1, that 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<br>event as negativing the evidence of a present intention to remain permanently in Kenya,<br>the petitioner had on the evidence in the case her to show that she possessed a Kenya domicile of choice.

(2) That adultery was not proved and that the alleged admissions of adultery not having been made evidence in the suit were properly disregarded.

Appeal dismissed.

Cases referred to: King v. Ki. g VII E. A. C. A. p. 1; Nash v. Rochford Rural Council<br>(1917) 1 K. B. 384; Sanders v. Sanders 19 Ch. D. 380; Shoe Machinery Co. v. Culton (1896) 1 Ch. D. 108.

Brian Figgis for the appellant.

Respondent absent, unrepresented.

NIHILL, C. J.—This is an appeal from a judgment of Mr. Justice Bourke in the Supreme Court of Kenya dismissing a petition for dissolution of marriage brought by a wife on the ground of her husband's misconduct with a woman named. The petition was brought under the provisions of the Kenya Matrimonial Causes Ordinance, 1939, under which no decree for dissolution of marriage can be entered unless the parties possess a Kenya domicile, either of origin or choice. As the domicile of a wife follows that of her husband it was necessary for the petitioner to call the respondent to give evidence with a view to establishing that he had acquired a Kenya domicile of choice.

His evidence as recorded by the learned Judge was as follows: —

"My name is Claude Reynolds Devonshire. I first came to Kenya in August, 1935. Prior to that I worked in England. I had a small house in England then. I disposed of it in 1935, when I left England. I was employed by Coffee Board of Kenya as a coffee liquorer—a taster. Since 1935, to the present day I have been in that employment. I have continuously resided in Nairobi since I arrived in Kenya. My intention is to remain in Kenya and make it my home. I formed this intention very shortly after I came into the country.

To Court.—Before I came here I was a coffee buyer for Moffat & Co., Mincing Lane—Coffee dealers. If I lost or left my present employment I would not alter my intention to remain here. I would commence my own business here in Nairobi as a coffee expert. I have no property in Kenya. I have a rented residence here. I have no property in England. I do all my banking with Barclays Bank, Nairobi. I have lived in various rented houses in Nairobi. When I came here in 1935, I hoped to be able to settle here and on arrival that intention was confirmed. I am the respondent in this case."

At the close of the petitioner's case which was undefended her counsel submitted that adultery had been amply proved and that a Kenya domicile had been established. The Court took time to consider the matter and in a reserved judgment held that the petitioner had not discharged the burden of proving that she was domiciled in Kenya at the time when the petition was presented. The learned Judge then went on to consider the evidence which had been placed before him on the issue of adultery and came to the conclusion, that apart from the question of domicile, the petition failed because this evidence was too weak from which to draw a reasonable inference that misconduct had taken place between the respondent and the woman named. The petitioner now appeals to this Court on two grounds (a) that the learned Judge was wrong on the question of domicile and $(b)$ that in assessing the evidence with regard to adultery the learned Judge overlooked the fact that attached to the affidavit of service were signed admission by both the respondent and the woman named admitting the truth of the material allegations contained in the petition. The petitioner's advocate who conducted the appeal before us with skill and earnestness has taken the further point in amplification of $(b)$ above that this Court is not bound by the learned Judge's finding of fact on the issue of adultery because once he had decided against the petitioner on the question of domicile, he had no justification to go into the issue of adultery.

I think it will be convenient to dispose of the last point first. In my view the learned Judge having heard the whole of the evidence tendered by the petitioner was right to give his judgment both on the question of domicile and the issue of adultery. In fact I do not see how he could have done otherwise. It is true that he might have adjourned the petition after hearing the evidence of Mr. Devonshire, if he was then not satisfied that a Kenya domicile had been established and he needed time for consideration and I am not sure that this would not be the better procedure to adopt in such cases; but when the whole of evidence in a suit is before a Judge I think he must give judgment on all material issues. It is evident from the terms of the judgment in the instant case that the learned Judge realized that on the difficult question of domicile he might be held wrong in another Court and that then the issue of adultery would be all important Furthermore it should be noted that by the terms of the Ordinance no bar is set up limiting the right of the Court to hear Matrimonial causes. What is restricted is the power to grant certain kinds of relief, of which a decree for the dissolution of a marriage is one, when the party seeking relief is unable to establish a Kenya domicile.

On the question of domicile I find myself in some difficulty. The learned Judge has reviewed the English authorities with great care and in the main I find myself in agreement with his conclusions. I should indeed regret if any decision in this case should come to be regarded as in any sense indicating that this Court wished to whittle down the general principle that a very heavy burden is cast on one who seeks to show that he has abandoned his domicile of origin in favour of a new domicile of choice. I agree also generally with the comment of the learned Judge in which he expressed surprise that more use was not made in this Colony of the jurisdiction conferred on the Supreme Court by the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, in cases where domicile appears to be in a doubt. It is when I come to the learned Judge's application of the case of King v. King VII E. A. C. A.1 that I experience difficulty. It is a truism to say that each case must be decided on its own facts but when on the facts found in the above (which it must be conceded were less strong than in the present instance) certain principles emerge those principles must be binding on this Court. I think that the principle on which King v. King was decided can be stated to be that 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. Attempting to apply that principle to the instant case I think the appellant has shown that there is nothing in the surrounding circumstances or in the evidence given at the hearing of the petition, which suggests that Mr. Devonshire has not permanently established himself in this Colony. I could have wished myself that the<br>examination of Mr. Devonshire, both by the petitioner's counsel and by the Court had been a little more detailed. We do not know for example the nature of the terms of his employment with the Kenya Coffee Board. Does it include periodic periods of leave in the United Kingdom, and is he liable for transfer to other offices of the Board, if such exist, in the United Kingdom or elsewhere? Has he any family ties remaining in England? Answers to these questions might have been helpful but as they were not put to Mr. Devonshire I cannot assume that if given they would have been adverse. Mr. Devonshire has said in evidence that if he lost or left the employment of the Kenya Coffee Board he would set up business on his own account in Nairobi as a coffee expert. He has been in the Colony continuously for twelve years. He says that he came here in 1935 with a hope that he might settle here and that since then this hope has become a fixed intention. Taking all this together I think the learned Judge could have held and I would so hold that the petitioner did discharge sufficiently the onus placed on her to show that she possessed a Kenya domicile of choice. This will, however, I fear avail her little in these proceedings as I am of the opinion that on the issue of adultery the learned Judge was manifestly right. No evidence was given at the hearing of the petition of any admissions by the respondent and the woman named and it is a well-established rule of Divorce practice that evidence of misconduct by affidavit will not be admitted save in exceptional circumstances which were certainly not present in this case. I do not propose to go into the evidence given by the witness Moran in detail because Mr. Figgis himself concedes that this, taken by itself, is not sufficient proof of misconduct. We have been assured that the learned Judge's attention was drawn to the attachments to the affidavit of service but if this be so in my opinion the learned Judge could not have regarded them as evidence in the case. In my opinion, therefore, the order of the learned Judge dismissing the petition should be upheld and this appeal

dismissed. I have not dealt with certain suggestions made to us by Mr. Figgis during the course of the hearing as these are fully covered in the judgments about to be delivered by my learned brothers.

SIR G. GRAHAM PAUL, C. J.—The appellant was the petitioner in a Divorce Suit in the Supreme Court of Kenya. The learned Judge in the Court below held that he had no jurisdiction to try the suit for the reason that the petitioner had failed to prove that she was domiciled in Kenya. It is admitted that the respondent's domicile of origin was in England but the case for the petitioner was that her husband prior to the suit had acquired a domicile of choice in Kenya. The learned Judge had held that the petitioner has failed to prove that her husband did acquire *sub* domicile of choice.

The evidence in support of the acquisition of a domicile of choice in Kenya is that of the respondent. That evidence has already been quoted in the judgment of the learned President and I need not repeat it.

The case of King v. King 7 E. A. C. A. 54 was quoted in the Court below and in this Court. That was a judgment of this Court. It is of course true that proof of domicile is a matter of the particular facts and circumstances of each case so that one must be careful in holding that a decision in one case is a ruling authority in another. Having carefully considered the case of King v. King however. I am of opinion that the facts of that case were if anything less in favour of the petitioner than the facts of this case and I am unable to distinguish this case unfavourably to the petitioner from the case of *King v. King* and I therefore feel bound to follow the decision in that case and hold that there was sufficient proof of acquisition of a domicile in this case.

I may say that on coming to that conclusion I studied carefully the judgment of the Court below to see on what grounds the learned Judge distinguished the present case from King v. King but I have been unable to find any convincing ground for distinction.

Having decided, wrongly as I think, that he had no jurisdiction the learned Judge proceeded to consider the merits of the case and concluded his examination of the evidence as to the adultery alleged by saying "I would hold that the misconduct alleged has not been proved".

That raises a question as to the position of this Court if we find that the learned Judge, contrary to his finding, had jurisdiction to try the suit.

I have examined the evidence as to the alleged adultery and I agree with the learned Judge that the evidence as it appears on the record was extremely thin. It seems to me that neither the advocate for the petitioner nor the Court examined the important witness Moran with the closeness which such evidence demands in a Matrimonial suit. It has been suggested to us that in addition to the evidence of Moran as to the adultery there is further evidence namely endorsements of admissions by the alleged guilty parties on the petition served upon each of them. What appear to be admissions by these parties do appear on the petitions in the file but quite clearly these admissions were not made evidence in the suit. They could easily have been made evidence by being properly proved by a witness examined *viva voce* in open Court. The essential witness was actually present in Court conducting the case for the petitioner but did not give evidence. No application appears to have been made to the Court under Rule 25 (1) for this evidence to be taken on affidavit and with the essential. witness actually present such an application would probably have been refused if it had been made. In these circumstances I consider that the learned Judge was bound to ignore these alleged admissions as he did.

It is now open to this Court to consider the evidence as to misconduct and the evidence of the one witness Moran is clearly by itself insufficient and this Court in my opinion has therefore no option but to dismiss the appeal, though

disagreeing with the learned Judge on the question of jurisdiction. I have considered whether this Court would be justified in sending the suit back for retrial but to do so would establish a precedent for sending back every case in which a petitioner or plaintiff could show this Court that though he had failed to prove his case in the Court below he had a reasonable prospect of doing so if given a second chance. I am persuaded that it would be neither wise nor proper to set up such a precedent.

It was suggested to us by appellant's counsel that this Court might take fresh evidence to prove the admissions. That evidence was readily available at the trial and that the petitioner's advocate elected not to call that evidence. In such circumstances an appeal Court will not call fresh evidence.

I agree that the appeal should be dismissed with costs.

EDWARDS, C. J.—I think that the facts established by the husband (respondent) in this case as to his Kenya domicile are at least equally as strong as those in the case of King v. King Vol. 7 Law Reports Court of Appeal for Eastern Africa page 1.

In my view, the circumstances in the present case tending to show that the husband may now reasonably be regarded as having acquired a domicile of choice in Kenya are the following, namely, that he has resided in Kenya continuously, that is, without having been absent from the Colony even on holiday, for twelve years, that he sold his house in England in 1935, that he appears to have no property outside Kenya and that there is no evidence that he has family ties outside Kenya and also his own evidence on oath that, shortly after he arrived in Kenya, he formed the intention of making his home here. I shall deal with all these matters seriatim.

As regards the fact of twelve years' residence that must, on any view of the facts, be regarded as a long time. The average official and unofficial employed in office or shop or engaged in a profession or a trade usually visits his home country about once in every three or four years. I realize that, between 1939 and 1945, the recent war made it difficult to obtain passages; but the fact that the respondent has apparently made no effort to, or evinced no desire to, go to England since 1945 would seem to be proof of the sincerity of his assertion that he had, to use a colloquialism, "nothing to take him to" England—in other words, that he has really made up his mind to remain out here. I realize that there is a heavy burden of proof on those who seek to prove that they have lost their domicile of origin. But the burden should not be so heavy as to be unbearable. After all, one must remember that the span of human life is limited. Surely, one must not have to wait till a person is almost at the end of life's journey before one is able to say of him "Oh! yes this man has been here for forty years; he is sixty-seven and he is still out here; we are at last in a position to say that we are satisfied that he is domiciled here".

I turn now to the question of property. Here I feel strongly that, if one is to criticise the failure of a person to prove affirmatively that he has sold up all his property elsewhere and that he has now no or little property elsewhere but that he has bought property in Kenya the scales of justice will be unduly and unfairly weighed in favour of rich people. A rich man might well be able to show that he has sold his house in Sussex and his shooting box in Scotland and that he has disposed of his interest in a business in Great Britain and that he has purchased property in Kenya while the poor man may not be able to show that he has sold property in his country of origin simply because he never has had much property there nor be able to show that he has bought much property in Kenya. That, to my mind, would be an intolerable state of affairs. But here we have the husband's evidence on oath that he sold his house in England. Turning now to his declaration on oath in the witness box as to his intention to remain in Kenya, I am of opinion that one would be cynical and suspicious

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to an unwarranted degree were one entirely to disregard evidence given on oath. Granted that there may always be present in divorce proceedings the risk of collusion. I understand that, in Kenya, the functions of King's Proctor devolveon a high official, namely, the Solicitor General. In making these remarks I have not ignored the case of *Annesley* (1926) 1 Ch. 692. I certainly do not wish to see the need for strict proof of the abandonment of a domicile of origin and the acquisition of a domicile of choice in any way relaxed. I merely say that, in this case, it seems to me that the petitioner has done all that could reasonably be expected of her to prove that her husband has acquired a Kenya domicile and to require more would be harsh and unreasonable.

I do, however, say very definitely that I entirely agree with the Court below as to the necessity of requiring as strict proof as can reasonably be expected before the Courts should declare themselves satisfied that a domicile of choice has been acquired. For the reasons which I have given it is my belief that, in this case, the petitioner has established that he has acquired a domicile of choice in Kenya. I agree with the remarks of the petitioner's advocate to the effect that, when the learned trial Judge referred to cases in which there was proof of declaration of intention, such cases seem to deal with the estates of deceased persons, e.g. whether a person died domiciled in one country or another and are therefore not very helpful as guides when we are dealing with the case of a living person. I cannot help saying that, in my view, much could have been elicited both by the petitioner's advocate and by the learned trial Judge by a more searching questioning of the husband. For instance, he could have been asked $(a)$ the duration and nature of his service agreement with his employers in Kenya $(b)$ whether a pension was attached, in which case the Judge might have inferred that the husband would likely return to England when he had earned his pension (c) questions in detail as to his property, both in England and here $(d)$ reasons why he had made no effort to visit England during the past twelve years (e) questions as to his relatives and ties in England and $(f)$ questions as to health, hobbies, pursuits, etc., which might have explained why he had taken such a liking to Kenya, and many such like questions. But the fact that this was not done should not, in my view, tell against the petitioner in her efforts to establish that the Court had jurisdiction by reason of the respondent having acquired a Kenya domicile. On the whole, I think that it has been established that the respondent (husband) has acquired a domicile of choice in Kenya. Mr. Figgis, at the outset of his address, asked this Court to lay down certain rules or principles for the guidance of advocates on this rather vexed matter of proving the acquisition of a domicile of choice in Kenya. Speaking for myself, I think that it would be impossible to do so, and, in any event, would be misleading and dangerous to attempt to do so. Each case must depend on, and be decided according to, its own circumstances.

I now turn to the question whether adultery has been proved. I may say, at once, that the evidence of Mr. Eric Moran by itself is certainly quite insufficient to enable an inference of adultery to be drawn. I understand that Mr. Figgis does not seriously dispute this. But Mr. Figgis drew our attention to an affidavit of service of the summons sworn by the advocate who appeared for the petitioner in the Supreme Court of Kenya. In that affidavit the deponent swore that the respondent and the lady whom the petitioner charged with having committed adultery with her husband voluntarily signed acknowledgments and admissions of the allegations contained in the petition. Mr. Figgis has told us that he has been assured that that affidavit was brought to the notice of the learned trial Judge. Even if one accepts that assurance it would not appear that the Judge admitted it as evidence. There is no reference to it in the Judge's very full notes of the proceedings, in particular, there is no note that the petitioner's then advocate referred to it in his final address and there is no mention of it in the judgment, which is quite long. Mr. Figgis next says that, as the affidavit is "on the file", we should assume that the learned Judge at least saw it and perused: it. I am certainly not prepared to make any such assumption. Unless the attention of the learned Judge was specially drawn to it and unless the Judge had been specifically moved in the Court below to treat it as evidence I am unable to see how we can regard it as properly part of the record before us. But, even if it had been dealt with by the Court below there would still be the further question of what, if any, was its evidential value as proof of adultery. In my view, before evidence by affidavit can be accepted, either under the rules of Court relating to Matrimonial Causes or under Order XVII Rule 1 Civil Procedure Rules, 1927, a special order of the Court of trial is necessary. No such special order seems to have been applied for. Mr. Figgis finally asked either that we ourselves should take evidence or remit the case to the Court below for that purpose. The circumstances in which such an application will be granted by the Court of Appeal in England are set out in the English Rule Order 58, Rule 4 (see the Annual Practice, 1940, page 1268). I refer to Lord Justice Scrutton's judgment in Nash v. Rochford Rural Council (1917) 1 K. B. page 384 and pages 393, 394 and 395. In the case of *Sanders v. Sanders* 19 Ch. D page 380 Lord Jessel, M. R. said "The appellant has applied for leave to adduce fresh evidence but I am of opinion that it ought not to be granted. The application is for an indulgence. He might have adduced the evidence in the Court below". In Shoe Machinery Co. v. Culton (1896) 1 Ch. D 108 such an application was refused. I would accordingly refuse the application. Mr. Figgis contended that, if we found that the Court below erred on the point of domicile, then the learned trial Judge's finding on the issue of adultery should be ignored as it was made at a time when that Judge thought that he had no jurisdiction to try the petition. The short answer to this argument seems to me to be that the Court below in fact (as we have found) did have jurisdiction, the husband (respondent) being domiciled in Kenya. As the petitioner failed to establish adultery I would dismiss the appeal with costs.