In Re: Maintenance Orders Enforcemrnt Ordinance; (Miscellaneous Civil Suit No. 23 of 1953) [1954] EACA 94 (1 January 1954)

## ORIGINAL CIVIL

Before CRAM, Ag. J.

# In re THE MAINTENANCE ORDERS ENFORCEMENT ORDINANCE $(Cap. 16)$

# In re RODERICK FOUNTAINE ANTROBUS JOHNSTON

### otherwise ANTROBUS: a Debtor

Miscellaneous Civil Suit No. 23 of 1953

International Private Law-Comity-Maintenance Orders Enforcement Ordinance (Cap. 16)—Whether reciprocity with Southern Rhodesia—Jurisdiction to register foreign maintenance order-Maintenance order ancillary to decree of divorce—Whether Ordinance appropriate for enforcement— Whether court can enforce order without proof of foreign law—Civil Procedure and Practice-Whether a civil suit-Whether a civil or quasi-criminal proceeding—Whether enforceable by application to execute a decree—Debts (Summary Recovery) Ordinance (Cap. 8), section 12 (1)—Order enforceable as a fine—Criminal Procedure Code (Cap. 27), section 331 (1)—Directions as to procedure to enforce order by issue of distress warrant-Maintenance Orders Enforcement Rules, Rule 5—Application to appoint person to receive payment—Rules of Court, Part VI, Rule 2 (5) (9)—Application to be by summons in chambers.

The plaintiff obtained a decree of divorce with ancillary orders for custody and maintenance of the minor child of the marriage in the High Court of Southern Rhodesia. The maintenance order was sent, by post, for enforcement, to the Registrar of the Supreme Court by the Secretary of Justice in Southern Rhodesia, but was returned, by the former, on the advice of the Attorney-General. The order again reached the Registrar, this time through the prescribed diplomatic channel and was duly registered. Crown counsel on behalf of the Attorney-General raised certain legal objections to the Attorney-General taking steps in terms of rule 11 of the Maintenance Orders Enforcement Rules. The plaintiff then appointed a firm of advocates to represent her. The Registrar registered the order in the register of civil suits in the Supreme Court Registry and an advocate applied for "execution of the decree" under Order 21, rule 7 (2) of the Civil<br>Procedure (Revised) Rules, 1948. Because of the opinion expressed by Crown Counsel, the Registrar remitted the application before a Judge in chambers, for a ruling and directions, with a copy of the opinion which the Court considered as an opinion of an amicus curiæ.

Held (17-11-54).-(1) The provisions of section 3 of the Maintenance Enforcement Ordinance (Cap. 16), that the foreign maintenance order reach the Registrar through the diplomatic channel are more than directory and are imperative to ensure the guarantee that the copy order of the foreign court is genuine. The jurisdiction of the Registrar to register the<br>order is founded upon receipt of the order through the channel prescribed by law and,<br>if there is a failure to use that channel, the the order.

(2) A maintenance order, by English law, may be varied by the Court making the order and, not being a final order in a Court applying that law, cannot be enforced by a suit under the common law, unless it can be proved to be a final order by the foreign law. Reciprocal legislation in the United Kingdom and throughout the Commonwealth provides for this inability of the law and wherever there is reciprocity, a foreign<br>maintenance order may be enforced in Kenya under the provisions of the Maintenance Orders Enforcement Ordinance. The Ordinance is intended to include maintenance orders made by a foreign court ancillary to a decree of divorce.

(3) A maintenance order made ancillary to a decree for divorce is not a provisional order for maintenance, which latter may be enforced only after confirmation by a Kenya Court. A Kenya Court asked to enforce a foreign maintenance order of the first sort, need not inquire into the law of the foreign court to discover if the object of the order was a dependant.

(4) A proceeding to enforce a foreign maintenance order is not a civil suit but a civil proceeding. The proper intitulment of any such proceeding was "In re the Maintenance Orders Enforcement Ordinance (Cap. 16) and In re A. B. a debtor".

(5) The procedure to enforce the order was laid down by section 7 (2) of the Maintenance Orders Enforcement Ordinance, section 12 (1) of the Debts (Summary Recovery) Ordinance and section 331 (1) of the Criminal Procedure for payment of a civil debt recoverable summarily, and so by the issue of a distress warrant as if the debt was a fine. The application made to execute the "decree" under<br>the provisions of rule $7$ (2) of the Civil Procedure (Revised) Rules, 1948, was misconceived and was dismissed with an order that the applicant pay her own costs.

(6) To remove doubts, the proceeding was a civil and not a criminal or quasi-criminal one.

DIRECTION.—When the person, in whose favour a foreign maintenance order was made, desired a representative to act in place of the Attorney-General who had otherwise, by rule 11 of the Maintenance Orders Enforcement Rules, a statutory duty to take steps to recover the money due under the order, an appropriate procedure was to apply for an order appointing such person to receive payment and this could be done by an $ex$ parte summons in chambers accompanied by an affidavit under the provisions of rule 2 (5) and rule 2 (9) of Part VI of the Rules of Court. then empowered by the rule to apply to enforce the order.

Cases cited: Bailey v. Bailey, (1884) 13 Q. B. D. 855; Robins v. Robins, (1907) 2 K. B. 13; Harrop v. Harrop, (1920) 3 K. B. 386; Beatty v. Beatty, (1924) 1 K. B. 807 (C. A.); Harris, (1949) 2 A. E. R. 318; In re Wheal, (1932) 2 K. B. 716; Peagram v. Peagram, (1926) 2 K. B. 165; Hague v. Hague, (1937) 2 A. E. R. 539; Mordaunt v. Moncrieffe, (1874) L. R. 2 Sc. & Di (1954) 21 E. A. C. A. 105; In re Gamble, (1899) 1 Q. B. 305; Reg. v. Kerswill, (1895) $\hat{I}$ Q. $\hat{B}$ , 1, 8.

Also referred to: Latey on Divorce, 14th Edition, page 1036.

Compared: In pari materia, the Maintenance (Facilities for Enforcement) Act 1920; The Matrimonial Causes Act, 1950, section 26; The Matrimonial Causes Rules, 1950, rule 74.

$\overline{a}$

Shaylor for applicant.

Ex parte reference.

RULING AND DIRECTIONS.—The applicant applies by Form 5 of Appendix D of the Civil Procedure (Revised) Rules, 1948, that is purporting to make use of the procedure provided by Order 21, rule 7 (2) of these Rules, for "execution of a decree". The applicant, who is a woman, obtained a decree of divorce, dated 16th February, 1948, against her husband, the respondent to the application, in the High Court of Southern Rhodesia and, at the same time, obtained an ancillary order for custody of the minor child of the marriage. These were decisions in rem. At the same time the court pronounced a further ancillary order providing for the maintenance of the said minor child, which had the status of an order in personam.

No legislation exists in Kenya Colony for the reciprocal enforcement of judgments obtained in Southern Rhodesia. Although both dependencies are within the Commonwealth, the status of a judgment of the courts of the latter is no more than a "foreign" judgment in Kenya. No reciprocity for the enforcement of judgments obtained in Southern Rhodesia exists in Kenya either under the Judgments Extension Ordinance (Cap. 14), which has never been extended to

Southern Rhodesia, or under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 15), which is a dead letter on our Statute Book, for the power to extend Part I of the Ordinance to foreign countries giving reciprocal treatment has never been exercised.

The applicant, who still resides in Southern Rhodesia, wishes to enforce the maintenance order against her former husband who is said to live in Kenya. She cannot register the order in personam in this Court for lack of reciprocity. If she were to attempt to make use of a remedy at common law and to sue out a writ on the order, she would find herself non-suited by reason of the rule laid down in Bailey v. Bailey, (1884) 13 Q. B. D. 855; Robins v. Robins, (1907) 2 K. B. 13; Harrop v. Harrop, (1920) 3 K. B. 386; and Beatty v. Beatty, (1924) 1 K. B. 807 (C. A.); for the divorce law of Kenya is identical with that of England on the topic of the enforcement of maintenance orders. The reason behind the rule is that as an order for payment of maintenance can be varied at any time at the discretion of the court that made it not only with regard to the future, but also with regard to past instalments which have accrued due and are in arrear, this Court would have to assume, in the absence of proof to the contrary, that the law of Southern Rhodesia would be the same, which is that the order *in personam*. not being a final judgment, could not be enforced to recover either arrears of maintenance or maintenance in the future.

In face of this *impasse*, the applicant has sought to have the order for maintenance registered in this Court under the provisions of the Maintenance Orders Enforcement Ordinance (Cap. 16), where reciprocity, apparently, still subsists with Southern Rhodesia according to Proclamation No. 34 of 1925, which has never been revoked and which was made under the provisions of section 10 of the Ordinance.

This proceeding was foreshadowed by a letter emanating from the office of the Secretary for Justice in Southern Rhodesia, accompanying a certified copy of the order and addressed to the "Secretary for Justice", Nairobi, apparently on the three-fold assumption that reciprocity existed with between the Colony and Southern Rhodesia; that this was the procedure appropriate in this Colony; and that this Colony had progressed to the stage of benefiting from a "Secretary for Justice". This letter, eventually, found its way to the Registrar of the Supreme Court, who did not register the order, but wrote to Messrs. Buckley, Hollister and Company, Nairobi, a firm of advocates mentioned by the Secretary for Justice, to be agents for the plaintiff, requiring them to act under rule 12 of the Maintenance Orders Enforcement Rules, Rules of Court, Part 18. This firm, on referring to the rule, replied that they could not see what action they were supposed to take and referred the Registrar to rule 11 which makes it mandatory upon the Registrar, after registering such an order, to forward all papers lodged with him to the Attorney-General, who is, by the rules, empowered to take steps to recover payments. The reply received from the Attorney-General on receipt of the papers was the simple and obvious one that he could not act until the Registrar had registered the order, but he further expressed an opinion that since the order had not come through the prescribed diplomatic channel it could not be registered at all.

With this view of the Attorney-General I most respectfully concur. If the provisions of the Maintenance Orders Enforcement Ordinance are to be used, then by section 3, the order, mandatorily, must be channelled by the Department of Justice in Southern Rhodesia to the Governor of that possession and be sent by the latter to the Governor of Kenya Colony, who, by law, has to transmit the same to the prescribed officer of the appropriate court in the Colony, in this instance the Registrar of the Supreme Court. The issue is now an academic one

for the order was returned by the Registrar, on that advice, to the Department of Justice in Southern Rhodesia and; having once more reached the Registrar through the lawful channel, was registered in the Registry as prescribed by rule 1 of Part 18 of the Rules of Court and filed in the Supreme Court Registry. I am of the view that where there is a mere irregularity in a procedure where the provisions of the law are directory only followed by registration of an order which is irregular, there is jurisdiction to enforce the order, provided no failure of justice results; but it would seem that section 3 of the Ordinance legislates beyond mere procedure and is more than merely directory, for an example, proof of signature on the order is, by section 10, reduced so that the court may deem that the signature is that of the judicial officer or officer of the court signing the certified copy, and for that reason and also so that the summary procedure provided by the Ordinance should not be invoked fraudulently, it is vital that before registering any order, such order should come through the diplomatic channel which provides a guarantee that the certified copy is, in fact, a genuine judicial order. That is, it would seem that the Registrar of the Supreme Court would have no jurisdiction to register the order unless he received the same through the lawful channel. Were he to do so, the registering and all other proceedings upon it would be void.

A body of correspondence then ensued revealing uncertainty not only as to procedure but to the very competency of the registration and execution of the order under the Ordinance. Eventually, Messrs. Buckley, Hollister and Company received instructions to represent the plaintiff and applied in writing by Form 5 Appendix D, of the Civil Procedure Procedure (Revised) Rules, 1948, for "execution of the decree".

In the meantime, learned Crown Counsel had written an opinion raising certain legal objections to the Attorney-General taking steps, there lying upon the latter a legal duty under rule 11 of Part 18, Rules of Court, since he is deemed by that rule to be the legal representative of the plaintiff. But the legal duty has now flown off since Messrs. Buckley, Hollister and Company have now been appointed by the plaintiff to act on her behalf in his place. Nevertheless, that opinion is now before the court as an opinion *amicus curiæ*.

I propose to consider the objections raised in this opinion with a view to settling these for the future because they raise important points of law and procedure in what is a quasi-public, quasi-private, proceeding upon which a great deal of confusion seems to reign in practice.

The principal objection taken was whether the Maintenance Orders Enforcement Ordinance was ever intended to apply in case of an order for maintenance made ancillary to a decree of divorce, or whether it ought to be confined to orders made in separation and maintenance proceedings prima facie, on broad general principles, it would seem that the raison d'être of this Ordinance, in its association with the great body of reciprocal legislation enacted in the United Kingdom and throughout the whole of the Commonwealth, is to provide for the inability, otherwise, of English law to provide for the enforcement of orders which are not final, such as maintenance orders and which cannot otherwise be enforced by a "foreign" court applying English law.

On the scope of "maintenance order" defined in the interpretation section of the Ordinance, section 2, I respectfully disagree with the opinion expressed by learned Crown Counsel. That definition in my view is wide enough to embrace and was intended to embrace maintenance orders of the sort now before the Court. The section runs: $-$

"2. For the purpose of this Ordinance: $-$

The expression 'maintenance order' means an order other than an order of affiliation for the periodical payment of sums of money towards the maintenance of the wife or other dependents of the person against whom the order is made. $\ldots$ "

Learned Crown Counsel was of the opinion that this embraced only summary separation and maintenance orders.

For assistance, I refer to the Matrimonial Causes Rules, 1950, made in the Probate, Divorce and Admiralty Division under the provisions of the Matrimonial Causes Act, 1950. At rule 74, these Rules define an "English maintenance order" as "an order for alimony, maintenance or other payments made or due to be made under sections 19, 20, 22, 23, 24, 26 and 27 of the Matrimonial Causes Act, 1950". Looking, therefore, to section 26 of that Act which deals with the custody and maintenance of children in an action for divorce, it is found to be:-

"(1) In any proceedings for divorce $\ldots$ the court may from time to time ... by ... the final decree, make such provision as appears just with respect to the custody, maintenance and education of the children of the marriage of whose parents is the subject of the proceedings...."

According to Latey on Divorce, 14th Ed., page 1036, orders made in the Divorce Division may be registered and enforced in the dominions to which the Maintenance Orders (Facilities for Enforcement) Act, 1920, applies; but only in such dominions or protectorates in which reciprocal provisions have been made and to which an Order in Council has extended the application of the Act. Orders in Council have extended the Act to Kenya (No. 474 of 1923) and to Southern Rhodesia (No. 1642 of 1921). The Orders recite that they are made because reciprocal legislation has been enacted in the country to which they apply. That is, a maintenance order of the identical sort now registered in and sought to Divorce Division this Court could, if made in the be enforced $bv$ enforced either Kenva perfectly competently in $\alpha$ r be in England. Southern Rhodesia. Where there is such extension to the Colony, it would reasonably be expected only to be made if reciprocal legislation were to be found in the Colony and also in Southern Rhodesia. Further adverting to section 28 (1) of the Kenya Matrimonial Causes Ordinance (Cap. 145), that sub-section is found to be identical with sub-section 26(1) of the Matrimonial Causes Act, 1950. Orders made for the custody and maintenance of children under the Kenya section might, therefore, be expected to be of the same legal quality and sort and force as those made under the corresponding sub-section in England and indeed, in my respectful view, they are. It is further my view that the definition of "maintenance order" contained in section 2 of the Maintenance Orders Enforcement Ordinance, while expressed in general terms, is of the same scope as the definition of "English Maintenance Order" contained in rule 74 of the Matrimonial Causes Rules, 1950, although there it has a specific demonstration. I consider that this Ordinance is the reciprocal complement of the English Maintenance Orders (Facilities for Enforcement) Act, 1920. I do not think, therefore, with deference to the opinion expressed by learned Crown Counsel, that the Ordinance was not intended to apply to an order such as that now before me. I consider one of the express purposes of the Ordinance (like its counterparts in the United Kingdom and elsewhere widely throughout the Commonwealth) was to make easier enforcement of maintenance orders, including maintenance orders made in respect of the children of a marriage made ancillary to a decree of divorce, which, as I have already shown, could not otherwise be enforced out of the jurisdiction of the metropolitan or colonial country where made, as a judgment in personam subject to revision. I find also that this Ordinance has been extended to Southern Rhodesia by Proclamation No. 34 of 1925 where reciprocal provisions are to be expected.

The next objection raised by learned Crown Counsel is that the Court is disabled from accepting the order as being ex facie valid without examination into or proof of the law of Southern Rhodesia, because the Court must first inquire if by the law of Southern Rhodesia the child, the object of the order, was in fact the dependant of the person the subject of the order: this followed from the $words:-$

"The expression 'dependants' means such persons as that person is liable to maintain according to the law in force in that part of His Majesty's dominions in which the Maintenance Order was made"

contained in section 2 of the Ordinance; and, in support of this thesis, he cited Harris v. Harris, (1949) 2 A. E. R. 318. That case was an appeal from the confirmation by the Uxbridge Justices of a provisional order made by the Sydney, New South Wales, Children's Court, and the learned President, Lord Merriman, stated that in accord with the terms of section 10 of the Maintenance Orders (Facilities for Enforcement) Act, 1920, the confirming court was bound to inquire into the law of New South Wales to discover if the children, the object of the order, were in fact dependents. With respect, there seems to be confusion of the confirmation by a magistrate in this Colony, acting under the powers conferred by section 6 of the Ordinance, of a provisional order made by a foreign court out of this Colony, with the registering of an order of a foreign court. In these circumstances, I do not consider that the reasoning in Harris v. Harris or in the analogous cases of In re Wheat, (1932) 2 K. B. 716, or Peagram v. Peagram, (1926) 2 K. B. 165, or *Hague v. Hague*, (1937) 2 A. E. R. 539, applies at all. The defendant against whom a provisional order has been made in absentia and unserved in the foreign court may, at the hearing in the confirming court in this Colony, object to the validity of the order and also deny that the benefitors under the order are his dependants. This follows from the provision that he may raise before the<br>confirming court any defence which he might have raised in the original proceedings and one of these defences is that the child is not his dependant. Here we have not a provisional order but an order in personam, which, although not final in the sense that it can be revised, still is far from being merely provisional. That order could be reviewed on that ground only before a superior court of appeal in Southern Rhodesia.

If I am invited, as it seems, to review the judgment of the learned Chief Justice of Southern Rhodesia in which he came to a decision in the Divorce Cause which he decided in his own court and under the law applicable to that court and in which further he came to a decision in personam that the child concerned was dependent, and to consider if that law, which is foreign to this Court, was erroneously applied and that that decision was wrong under that law, then that is an invitation which I must as firmly as respectfully decline. The defendant had, as remedy, an appeal to the appellate courts in Southern Rhodesia, which apparently he has not taken.

In my view, this maintenance order was not only lawfully registered in this Court; but, because of section 3 of the Maintenance Orders Enforcement Ordinance, must be held to have the same force and effect as if it had been an order originally obtained in this Court and, further, it must be held that this Court has power to enforce the order as if it were its own.

Section 3 of the Ordinance prescribes, as a general tenor of procedure, enforcement as if it had been an order originally obtained in this Court. The mode of enforcing orders is laid down by section 7 of the Ordinance. By section 7(1) it is mandatory upon the Registrar of the Supreme Court to take all such steps for enforcing the order as may be prescribed. In this instance the Registrar has done what he could, for he has sent the papers to the Attorney-General, who is deemed to be the legal representatives of the claimant by rule 11, Part 18 of the Rules of Court; but the Attorney-General has been relieved of his duty to act by the appointment of Messrs, Buckley, Hollister and Company, to represent the plaintiff. For procedure an applicant is referred to the provisions of section $7(2)$ of the Ordinance which reads: -

"Every such order shall be enforced in like manner as if the order were for payment of a civil debt recoverable summarily".

Plainly, this sub-section refers to the procedure legislated by the Debts (Summary Recovery) Ordinance (Cap. 8) and not the Civil Procedure (Revised) Rules, 1948, under which the application now before the Court has been made. It is on a reference of this application by the Registrar to a Judge in chambers that the matter came before me and the applicant's advocate appeared for a ruling and directions.

In accord with section 7 (2) of the Maintenance Orders Enforcement Ordinance, proceedings to enforce the order need not be commenced by complaint, as is required by section 4 of the Debts (Summary Recovery) Ordinance, for, in this instance, we have not a mere unproved claim, but the order of a foreign court registered in the Registry of the Supreme Court having already the status of an order of the Supreme Court. For further procedure 1 refer, further, to section 12(1) of the Debts (Summary Recovery) Ordinance as follows: -

"Any money payable by virtue of any order made under this Ordinance shall be recoverable as if it were a fine".

It is to be noted that it is not declared to be a fine, which is a penalty prescribed by section 25(5) of the Penal Code, but to be recoverable by procedure otherwise competent only to the recovery of fines. I so arrive at a provision which enlarges the jurisdiction of the Supreme Court to enforce the payment of sums due under foreign maintenance orders by the procedure appropriate to the recovery of fines.

Fines are recoverable under the provisions of the Criminal Procedure Code (Cap. 27), another procedural statute. Section 331 (1) of that Code empowers any court to issue a distress warrant in pursuance of an order to pay money as a fine $viz :=$

"When a court orders money to be paid by an accused person for fine, the money may be levied on the movable and immovable property of the person ordered to pay the fine by distress and sale under warrant ...."

That is, the applicant ought to have applied for a distress warrant to issue under the hand of a Judge of the Supreme Court as empowered by section 338 of the Code. Should any such warrant be returned unexecuted, then the *compulsitor* enacted in section 334 of the Code could be invoked whereby imprisonment is competent in default of distress.

In the result, I rule that the application, which was made under Order 21, rule 7 (2) of the Civil Procedure (Revised) Rules 1948, was misconceived and $1$ dismiss the same as incompetent. None of the costs thrown away by this application were in any way caused by an error on part of the defendant and I order the applicant to pay her own costs in the application.

The applicant may well have been misled by the intitulment of the proceeding as a "Miscellaneous Civil Suit" in the Register of Civil Suits in the Supreme Court. This was wholly erroneous. A "civil suit" according to the reasoning of the Court of Appeal for Eastern Africa in St. Benoist Plantations Ltd., v. Felix, (1954) 21 E. A. C. A. 105, is a civil proceeding instituted under the Civil Procedure (Revised) Rules, 1948, as a suit, and is concluded by a decree. In this instance we have an order in personam of a foreign court registered here merely for enforcement. In no sense can these proceedings amount to a suit as defined by the Civil Procedure (Revised) Rules, 1948, and it is inconceivable that the proceedings could conclude by a decree. In my respectful view, the proper intitulment of this proceedings is as follows: —

"In the matter of the Maintenance Orders Enforcement Ordinance (Cap. 16), Laws of Kenya: and In the matter of Roderick Fountaine Antrobus Johnston, otherwise Antrobus, a debtor", and the proceeding should be registered as a miscellaneous civil proceeding in the Registry.

That is, I am satisfied that the proceeding is properly a civil and not a criminal one, in spite of the fact that there has been a failure in the public duty to maintain a dependant child in a foreign state which has had to have recourse to to the diplomatic channel to obtain relief from an apprehended expenditure of public money and there is a legal duty arising from comity on the Principal Law Officer of the Crown in the Colony to act for the abandoned dependant in the absence of representation both from the wording of the law in the Colony and the trend of analogous law in England. There, in *In re Gamble* (1899) 1 Q. B. 305, the Attorney-General applied for a rule to obtain an authoritative decision that the enforcement of orders of maintenance by imprisonment, unless there had been a means test, was illegal and that such orders were recoverable as civil debts and not by criminal procedure as penalties. Wills, J., said: -

"It seems that down to 1868 where a person neglected to obey an order of justices ordering him to contribute to the maintenance of his parent he was liable to a penalty, and a penalty necessarily implies that the act or or omission in respect of which it is imposed is in the nature of a crime. For the omission to pay the money ordered there was therefore jurisdiction<br>to commit the defaulter to prison. Then, by section 36 of the Poor Law Amendment Act, 1868, the penalties imposed by section 7 of the Act of Elizabeth were repealed, and orders for the payment of money due under a maintenance order were to be enforced in the manner prescribed by Jervis's Act for the enforcing of orders of justices. It was suggested that as Jervis's Act applied both to informations—the procedure by which persons charged with crimes were brought before the court-and to complaintsthe procedure applicable to a failure to perform some civil obligation—it was left in doubt under which category the neglect to obey a maintenance order should be classed. But, even if the legislature stood there, I do not think that there would be any reasonable doubt about the matter. For the moment that the penalties were gone there was nothing left to stamp the failure to pay the money with the character of a crime. It was the artificial attachment of a penalty by the Statute of Elizabeth that alone gave the neglect its criminal character. Then the Summary Jurisdiction Act of 1879 seems to put the matter beyond all doubt. For it provides by section 6 that 'where under any Act, whether past or future, a sum of money claimed to be due is recoverable on complaint to a court of summary jurisdiction, and not on information, such sum shall be deemed to be a civil debt, and if recovered before a court of summary jurisdiction shall be recovered in the manner in which a sum declared by this Act to be a civil debt recoverable summarily is recoverable under this Act, and not otherwise'. When the legislature there speaks of money recoverable on complaint and not on information, it means money for the recovery of which a complaint as distinguished from an information is the proper procedure, and, as was pointed out in Reg. v. Kerswill, (1895) 1 Q. B. at page 8, the words 'and not on information'

were probably inserted only 'to emphasize the exclusion of criminal matters for the operation of section 6'. The only object of either an information or a complaint is to bring the defendant before the court, and when once he is there it does not matter in the least what the process by which he was got there was called: the question whether the money which he is called upon to pay is recoverable on complaint or on information must in each case depend upon the substance of the thing. Then, if the money due from the applicant in this case is a civil dcbt, the mode of its recovery is pointed out by section 35, by sub-section 2 of which it is provided that 'An order made by a court of summary jurisdiction for the payment of any such civil debt ... shall not, in default of distress or otherwise, be enforced by imprisonment, unless it be proved ... that the person making default in payment of such civil debt ... either has or has had since the date of the order the means to pay the sum in respect of which he has made default'. There has been no inquiry into the applicant's means in this case; therefore his commitment to prison cannot be supported, and the rule is made absolute."

A distinguishable body of legislation exists in this Colony and that ruling is not authoritative here, but principles of interpretation may be exercised and applied here. Although in the law of the Colony, the payment is declared enforceable as a fine it is nowhere said to amount to a penalty. On the contrary, each of the relevant Ordinances is careful to guard against any such interpretation. The order originated in a civil proceeding, a divorce cause, and divorce proceedings have been once and for all authoritatively declared civil and not criminal or quasi-criminal by the House of Lords in *Mordaunt v. Moncrieffe*, (1874) L. R. 2 Sc. & Div. 374 (H. L.). The order in personam is declared enforceable "as if it were a civil debt recoverable summarily" and further as "if the<br>money were a fine". In the result, there is no doubt that the proceedings to recover money under a foreign maintenance order in terms of these Ordinances are civil and not criminal or quasi-criminal I notice, however, that there is no such provision in our law, as mentioned by Wills, J., that in default of payment of a civil debt, payment cannot be enforced by imprisonment unless the defaulter is shown to have no means to pay. Here the debt may be enforced by imprisonment in default of distress.

Next, I have to consider the appropriate party who may apply for the issue of a distress warrant and finally by what procedure that person may apply.

I refer again to the Maintenance Orders Enforcement Rules, Part 18 of the Rules of Court, rule 5 of which runs: $-$

"When an order has been registered under section 3 of the Ordinance ... the court shall, unless satisfied that it is undesirable to do so, direct that all payments due thereunder shall be made to such person as it may specify for the purpose."

#### Rule 6 is as follows: $-$

"The person through whom payments are directed to be made shall collect the moneys due under the order and may take proceedings in his own name for enforcing payment and shall send the moneys when so collected to the Crown Agents for the Colonies for transmission to the person to whom they are due.

The person through whom payments are directed to be made may retain out of such moneys as come into his hands the amount of all disbursements necessarily made and a further sum not exceeding 1 per cent in respect of his charges."

I take it that where the Attorney-General has a duty to act then he will ordinarily take steps in terms of rule 11 and any money recovered would ordinarily be ordered to be paid out to him for onward transmission to the Crown Agents for the Colonies (or under whatever name these agents are now know after reorganization). Where an advocate is appointed in place of the Attorney-General, then the Court would probably name such advocate or any other suitable person put forward by that advocate, either of whom would have to account to the Crown Agents for the Colonies for sums recovered. In my view these stringent and limiting rules must follow from the rule of comity that a friendly neighbour State ought to be relieved from the burden of supporting the abandoned dependants of a resident within the Colony, as might otherwise happen if they had no other support, and became a charge upon public funds.

As this is a civil proceeding, I am of the view that an application ought to be made by the firm of advocates concerned by an *ex parte* summons in chambers. No procedure is laid down in the various Ordinances or rules made thereunder how the Court is to be moved; but this is plainly an appropriate case for making use of the machinery provided by Part VI of the Rules of Court (Vol. V, Laws of Kenya) providing for the transaction of miscellaneous business in chambers where not otherwise provided for under another rule, statute, Act, or Ordinance in terms of rule $2(5)$ or rule $2(9)$ . The summons should be accompanied by an affidavit deposing to the appointment to act to enforce the order, and should pray for a direction that all payments received be paid to a named individual, e.g. a partner in the firm. This person, then, might move the Court to issue a distress warrant, either at the time of appointment or merely by enrolling the proceeding and by an oral application to the Judge in chambers.