[1940] EACA 47

## ORIGINAL CIVIL

#### Before BARTLEY, J.

## IN THE MATTER OF CUSTODY OF CHILDREN ORDINANCE, 1926

#### and

## IN THE MATTER OF AN APPLICATION FOR CUSTODY OF ONE LOUIS PHILLIPE SOLAMALAY

## Between

# JOSEPH LEWIS SOLAMALAY, Applicant

### $and$

# SUSANNE ALICE SOLAMALAY, Respondent

### Civil Case No. 147 of 1941

Custody of children—Application of father that child be taken from custody of mother—Procedure—Custody of Children Ordinance, 1926.

The applicant by way of notice of motion intituded "In the matter of Custody" of Children Ordinance, 1926," asked for an order that his child may be taken out of the custody of the mother and be committed to his custody or to the custody of other named persons.

*Held* $(8-12-41)$ .—(1) That the procedure to be adopted by a father to enforce his right as guardian to the custody of his children is by writ of habeas corpus or by petition.

(2) Sections 3, 4, 5 and 6 of the Custody of Children Ordinance, 1925, do not provide for any new procedure in making an application to the Court.

#### Sorabjee for the Applicant.

#### Barrett for the Respondent.

ORDER.—That this is an application by way of notice of motion by the father of an infant asking the Court to order that his child may be taken out of the custody of his mother and be committed to his custody or to the custody of other named persons. The notice of motion which is supported by affidavit is intituled "In the matter of Custody of Children Ordinance, 1926."

Mr. Barrett for the mother, who was served as respondent, submitted that the application was not well founded as the application did not lie under that Ordinance.

Mr. Sorabjee relied on the following words in section 3 of the Custody of Children Ordinance, 1926, to show that an application by way of motion lies to the Court: "Where the parent of a child applies to the Supreme Court for a writ or order for the production of the child".

Sections 3, 4, 5 and 6 of the Custody of Children Ordinance, 1926, are taken from the Custody of Children Act, 1891, and I am of the opinion that the effect of that Act was, to quote from Daniell's Chancery Practice, Vol. 2, page 1948, "that the powers of the court on an application for a writ or order for the production of a child have been enlarged and the principles which guided the Court of Chancery in refusing to grant the writ have now statutory authority".

These sections in my view do not legislate for any new procedure in making application to the court and therefore an application does not lie under those sections.

I have not been referred to the origin of sections 7 and 8 of the Custody of. Children Ordinance, but in my view applications do lie to the Supreme Court or to a first class subordinate court under those sections and indeed section 9 of the Ordinance legislates for the making of orders under those two sections.

Those sections, however, do not apply to this application.

There is no legislation in this Colony so far as I am aware governing the procedure to be adopted by a father to enforce his right as guardian by nature and nurture to the custody of his children.

Before Order 55A, Rules of the Supreme Court of England, was made after the passing of the Guardianship of Infants Act, 1925, the right to custody in England might be enforced by writ of habeas corpus or by petition (Halsbury Laws of England, 1st Ed., Clause 251.).

In my view, by reason of article 4 (2) of Kenya Order in Council, 1921, this procedure in force in England on the 12th day of August, 1897, is in force in this Colony.

Mr. Sorabjee for the applicant has referred me to Order XLVIII, rule 1, of the Civil Procedure Rules, but in my view the applications referred to in that rule are applications in a suit, and not applications purporting to institute a suit.

For the reasons given I hold that the respondent's contention is well founded and that the application is not properly instituted.

The application is dismissed with costs.