Krishan v Kumari (Civil Proceeding No. 344 of 1954) [1955] EACA 9 (1 January 1955)

## ORIGINAL CIVIL

## Before CRAM, Ag. J.

#### GAJREE SIRI KRISHAN. Petitioner

$\mathbf{v}$

# KRISHNA KUMARI. Respondent Civil Proceeding No. 344 of 1954

Civil Procedure and Practice-Hindu Law-Custody of child-Hindu Marriage, Divorce and Succession Ordinance, Cap. 149—Civil Procedure Ordinance, Cap. 5, sections 89, 79 (b) and 97—East Africa Order in Council, 1897, Article 15— East Africa Order in Council, 1902, Article 22-East Africa Order in Council, 1906, Article 11-Rules of Court, Part VI-How Court may be approached for an order for custody of child-Whether Hindu law applies in case of child of Hindu marriage—Whether application simpliciter for custody provided for under Cap. 149; whether invocation of inherent power of Court correct—Compared: Indian Civil Procedure Codes of 1877 and 1908, sections 647 and 141 respectively—Historical application of Chancery custody procedure to Kenya.

A Hindu separated from his wife applied for the custody of the child of the marriage, invoking the provisions of the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149, and also the inherent jurisdiction of the Court. The wife, the respondent, in *limine*, submitted that procedure by petition was incompetent because the only available procedure was by plaint as legislated by section 89 of the Civil Procedure Ordinance, Cap. 5, and Order IV, rule 1, of the Rules made under it. The Court discovered from the Kenya Law Reports that practice in the Supreme Court had not been consistent and traced the historical development of Chancery procedure for an order for custody by petition, as applied to the Colony by Orders in Council and compared procedure in England and in India, observing that Order 55 of the Rules of the Supreme Court, England, crystallizing Chancery procedure, was not only a practice existing in 1897, applied to the Colony, but the rules relevant to applications for the custody of a child were reiterated in Part VI of the Rules of Court. The Court also considered the law applicable in case of custody of a child of a Hindu marriage.

Held (4-7-55).—(1) While, in a proper case, it might be competent to make an order for the custody of a child of a Hindu marriage, ancillary to an order, in a matrimonial cause, brought under the provisions of the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149, an application *simpliciter* for the custody of such a child was not a claim which affected a Hindu marriage so as to bring the procedure under the aegis of the Ordinance.

(2) In interpreting non-monogamous contracts of marriage entered into under Hindu law and custom, the only suitable law is the personal law of the contracting parties, which is at least applied by the Ordinance, but this personal law is neither applied by the Ordinance nor is it suitable to determine questions of the custody of children of whatever race or religion in a British possession. Questions concerning procedure to obtain orders for the custody of children have, for long, been determined by the English Courts as part of the common law and equity of England and are within the infinite in the Kenya Courts because that common law and equity have been consistently applied to the Colony by a series of Orders in Council commencing in 1897. Neither this jurisdiction nor this law has been ousted by Cap. 149.

(3) Neither the Custody of Children Act, 1891, nor the Guardianship of Infants Acts. 1868 and 1925, are statutes of general application and none have been applied to Kenya. Procedure under the latter Acts is governed by Order 55 (a) R. S. C., England,<br>but this Order is specifically devoted by rule 2 thereof, to give effect to the latter Acts and so cannot affect procedure in Kenya.

(4) The Custody of Children Ordinance, 1926, like its counterpart in England, the Custody of Children Act, 1891, does not legislate for substantive remedy, the existence of which it recognizes merely by enlarging the equit subsidiary legislation has been made under the Ordinance but provision for procedure in applications for the custody of children has existed since the East Africa Order in<br>Council, 1897, Article 15. In addition, since 1911, there have existed Rules of Court made under the provisions of the East Africa Orders in Council, 1902 and 1906, Articles 22 and 11 respectively, now Part VI of the Rules of Court, by sections 7 and 10 of the Revised Edition of Laws Ordinance, 1948.

(5) Under the Orders in Council, the remedies available to obtain custody of a child, were a writ of habeas corpus under the applied common law or, an order upon a petition under Chancery procedure and these remedies are still available. Rule 2 (5) of<br>Part VI Rules of Court, adopting rule 2 (12) of Order 55 R. S. C., England, also applied to the Colony in 1897, provided an additional method of approaching the Court by originating summons. Approach by summons is the proper mode when brevity of pleading is<br>indicated but, where it is essential to condescend at length upon facts, petition is the preferable mode, as it was in the instant petition.

(6) A Court is deemed, in the absence of express provisions, to possess as inherent in its very constitution all such powers as are necessary to do the right and undo a<br>wrong in the course of justice. On the other hand where there are express provisions of law applicable to a particular case there is no inherent power in the Court to<br>override them for that would amount to a repeal of the provisions. The inherent power of the Court only exists where there are no express provisions of law applicable to<br>the case. In the instant petition expressed procedural provisions were in existence and the invocation of the inherent jurisdiction was therefore in error.

(7) A "suit", as defined by the Civil Procedure Ordinance, Cap. 5, cannot be other than civil proceedings commenced in accordance with Rules prescribed by the Rules Committee constituted by that Ordinance. It was not the intention of that Ordinance that each and every civil proceeding must necessarily be commenced, as a suit com-<br>mences, with presentation of a plaint or that the Civil Procedure Rules necessarily<br>applied thereto. Section 89 of the Ordinance clearly co Court might entertain civil proceedings which were not so commenced and were not "suits" and these might conclude with an order and not with a decree and such an order might be made under a special or local law; as envisaged by section 79 $(b)$ and might originate in the manner prescribed or indicated historically by such other law, which would comprehend an Order in Council or Rules of Court, other than the Civil Procedure Rules. Procedure by petition for the custody of a child was not brought<br>to an end by the enactment of the Civil Procedure Ordinance which applied its rules<br>only "so far as applicable" but, to the contrary, was in

$\mathbb{J}$

Semble: Even if proceedings ought to have been commenced by originating summons, the Court would not have dismissed the petition for want of jurisdiction, or other reason, but would have treated the petition as an irregularity and, if eventually successful, the petitioner would have been restricted to the costs of a summons only.

Cases cited: Gulam Mahomed v. Hadayat Bibi, (1922) 9 E. A. L. R. (E. A. C. A.) 76;<br>Shariff Abdulla bin Mohammed v. Zwena binti Abeda, C. A. 20 of 1953, E. A. C. A.<br>(unreported); Mohamed Hassan v. Nana binti Mzee, (1944) 11 E. A. C. A. Emerson, (1893) 11 I. L. K. 216; Indicat Frasad v. Fukur-Oldat, (1893) I. L. K. 17 Kin. 1987,<br>Ningappa v. Gangawa, (1886) I. L. R., 10 Bom. 433; Minatoonnessa Bibee v. Khantoon-<br>nessa Bibee, (1894) I. L. R. 21 Cal. 479; Ram Gopal In re Hicks; ex parte The North-Eastern Railway Co., (1894) 63 L. J. Ch. (N. S.) 568;<br>A. C. B., a Minor, In re, The Custody of, (1922) 10 K. L. R. 70; In re Meister, Lucius & Brunning Ltd., (1914) 31 T. L. R. 28.

Cases not followed quoad procedure: Hamisi bin Ali v. Mariamu binti Ali, (1929) 12 K. L. R. 51; Nona binti Bakari v. Mauwa binti Jabiri, (1933) 15 K. L. R. 63.

Case considered: Solamalay v. Solamalay. (1941) 19 K. L. R. 50.

Cases distinguished: Mohamed Hassan v. Nana binti Mzee, (1941) 8 E. A. C. A. 12; Mansion House v. Wilkinson, (1954) 21 E. A. C. A. 98; Saint Benoist Plantations Ltd. v. Felix, (1954) 21 E. A. C. A. 105.

Authorities cited: *Halsbury, Laws of England*, 2nd edn., Vol. 17, p. 659, para. 1377; "Annual Practice", 1955, p. 1092 and p. 1106.

Compared in pari materia: Indian Code of Civil Procedure, 1887, section 647; Indian Code of Civil Procedure, 1908, section 141; Rules Supreme Court, Order 55.

Kean for petitioner.

Nazareth for respondent.

RULING.—The petitioner invokes the jurisdiction of the Court under the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149, as well as the inherent jurisdiction, for an order for the custody of the child of a Hindu marriage. Further he prayed for a declaration that the subsequent marriage of his wife to another Hindu be declared invalid by Hindu law, but the second part of the prayer was abandoned.

The respondent has raised certain preliminary objections which give rise to a not unimportant facet of procedure and which could be construed to amount to a plea of no jurisdiction; viz.: $\rightarrow$

(1) That the proceedings should have been commenced by plaint under the provisions of section 89 of the Civil Procedure Ordinance, Cap. 5, and Order IV, rule 1, of the Rules made thereunder.

(2) That the petition could not be instituted under the Hindu Marriage, Divorce and Succession Ordinance, Cap. 149.

(3) Proceedings purporting to be under Cap. 149 could not properly be combined with proceedings under the inherent jurisdiction.

I repel the first of these submissions and uphold the second and third and it will appear *post* that the appropriate procedure was not shadowed by the argument of either party, although procedure by petition is not incompetent.

Adverting, first, to the invocation of Cap. 149 I discover that no subsidiary legislation has been made under this Ordinance. Cap. 149 enables a Hindu to present a petition for restitution of conjugal rights but provides no jurisdiction for dissolution of Hindu marriages. Ex facie of the legislation, the jurisdiction sounds in matrimony and succession. By English law, applied to the Colony by section 3 of Cap. 145, the jurisdiction in matrimonial causes does not enable the Divorce Court to make orders for the custody of children unless as ancillary to decrees of divorce, nullity of marriage, judicial separation and restoration of conjugal rights. None of these dominant remedies is remotely suggested by the instant petition. To all intents and purposes, it now amounts to an application by a father for the custody of the child of a marriage said to be in the possession of the mother. In my view, this petition has nothing to do with matrimonial causes and equally little to do with the matrimonial and succession jurisdiction provided by Cap. 149. It may be that ancillary orders for the custody of children could competently be made in a matrimonial cause properly brought under Cap. 149, but no jurisdiction is given by the Ordinance to make a bare and single order for the custody of a child, although between married persons. I am strengthened in this view by the decision in Gulam Mahomed v. Hadayat Bibi, (1922) 9 E. A. L. R. E. A. C. A. 76, which was made in a suit to recover a dowry under the then wider provisions of the Mohammedan Marriage Ordinance, 1920. as it stood unamended. Barth, C. J., dismissed the petition because it was "a

money claim which does not affect the marriage". (Section 2 of Cap. 148 has since that decision been amended.) Applying this reasoning, this is a custody claim which does not affect the marriage. The Court must therefore declare it is without jurisdiction to entertain the petition under Cap. 149. Further supported by the dictum of Griffin, C. J., in Shariff Abdulla bin Mahommed v. Zwena binti Abedi, C. A. 20 of 1923 (unreported), quoted by Sheridan, C. J., in Mohamed Hassan v. Nana binti Mzee, (1944) 11 E. A. C. A. $4$ :

"The questions of guardianship are part of the common law of England and have always been determined by the English Courts and accordingly form part of the jurisdiction of the Courts here. In our opinion, the right to determine this question in accordance with the principles of the common law of England has not been ousted by the Mohammedan Marriage, Divorce and Succession Ordinance, 1920."

In my view, this *dictum*, however it may have been affected, by amendments to the Ordinance mentioned, can be applied to issues of the custody of a child simpliciter, in relation to the Hindu Marriage, Divorce and Succession Ordinance, which is not so wide in its terms. That is, while the Court will consider the personal religious law under which Hindus entered into a non-monogamous contract of marriage, as governing their *status* in matrimony, it will not apply that law when it is called upon to decide into whose custody it will commit a child but will apply the general law of Kenya. Non-personal non-religious law is ordinarily applicable in Kenya.

Turning now to the second invocation of jurisdiction, I think I may look to a cardinal principle derived from Indian decisions under the Indian Code of Civil Procedure of 1908, the derivative of section 97 of the Kenya Civil Procedure Ordinance, that what is saved is a power to make orders necessary for the ends of justice, as a recognition that there will always be cases and circumstances which cannot be foreseen by the legislature and which are not covered by the Ordinance. As was observed in Narsingh Das v. Mangal Dubey, (1883) I. L. R. 5 All. $163:$ —

"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but, on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle prohibitions cannot be presumed.'

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A Court is deemed, in the absence of express provisions in the Civil Procedure Ordinance or Rules, to possess, as inherent in its very constitution, all such powers as are necessary to do the right and undo a wrong in the course of the administration of justice. On the other hand, where there are express provisions of law applicable to a particular case there is no inherent power in the Court to override them for that would amount to a repeal of the Ordinance. The inherent power of the Court only exists where there is no express provision of law applicable to the case.

That is, I have to look for any express provision of law entitling the petitioner to apply for the custody of his child and, if there are any such, then he is statutorily barred from invoking the inherent jurisdiction. As it will be seen, in my opinion, such provisions do exist and the petitioner was in error. It is the aim of justice that an injury should be remedied and needless expense and inconvenience to parties avoided, but, where a party has another remedy open and will not adopt it or, negligently fails to pursue it, it will not be in the ends of justice, as a general rule, to grant him relief under the Court's inherent powers, except in exceptional and peculiar circumstances. The Court cannot under its inherent powers deal with matters over which it has no jurisdiction.

It now becomes essential to discover historically what part petitions for custody of children play in the Law of England and whether that procedure ever applied to Kenya and, if so, if it is still valid and competent.

At common law, a father has a natural jurisdiction over the infant's welfare and a right to the custody of his child during infancy. The right exists even against the mother— $R$ , v. De Manneville, (1804) 5 East. 221. The father may apply, by writ of *habeas corpus*, for an order to remove an infant of tender years from the custody of its mother. Ex parte M'Clellan, (1831) 1 Dowl. 81. Ex parte Witte, (1853) 13 C. B. 680. Procedure by petition was also competent. In ex parte Spence, (1847) 16 L. J. Ch. 309, a father petitioned in Chancery for an order against his wife to deliver up infant children. It was argued that the Court had no jurisdiction to make the Order without a bill being filed and that it could not be done by petition. Further, that the Court had never exercised such a jurisdiction except through the common law remedy of *habeas corpus*. The Lord Chancellor said that the Crown, as *parens patriae*, had jurisdiction over infants and appoints them a guardian and maintenance; that the common law Courts had no special jurisdiction over infants, but grant habeas corpus as to all persons not infants in particular. It was further submitted: No doubt the Chancery Court had the same jurisdiction as the common law Courts to deliver children into the custody of their parents, but, to found the jurisdiction, the children must be made wards of Court. In reply, it was argued that, as to jurisdiction, whether the relief was sought by petition or bill, the children are equally wards of Court. It was every-day practice to appoint a guardian and maintenance on petition: Lord Raymond's Case, Cas. T. Talbot 58. The Lord Chancellor then ruled that procedure by petition was competent without a bill being filed. and made an order for custody.

That is, the Courts administering the common law and those exercising the doctrines of equity, both claimed jurisdiction to make orders for custody. In the one case, a writ issued and, in the other, an order was made. This concurrent jurisdiction of the common law and Chancery Courts and concurrent procedure was notice by the legislature in enacting section 1 of the Custody of Children Act. 1891, where the principles of equity were statutorily recognized enabling a court, for good cause, to deprive a father of the custody of his infant child in favour of the mother in certain circumstances where he had applied "for a writ or order". That the Act applied a procedure by habeas corpus was recognized in ex parte Emerson, (1895) 11 T. L. R. 218, and it is to be inferred it applied *a fortiori* in obtaining an order in Chancery.

Adverting, therefore, to Article 4 (2) of the Kenya Colony Order in Council. 1921, the jurisdiction of the Supreme Court is to be exercised "in conformity" with ... the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th day of August, 1897, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice ... in England according to their respective jurisdiction and authorities at that date save in so far as ... the said common law doctrines of equity and the statutes of general application and the said powers, procedure and practice may at any time before the commencement of this Order have been or hereafter may be modified, amended or replaced by other provision in lieu thereof by or under the authority of any Order of Her Majesty in Council or by any Ordinance or Ordinances for the time being in force in the Colony.

"Provided always that the said common law doctrines of equity and the statutes of general application shall be in force in the Colony only in so far as the circumstances of the Colony and its inhabitants permit and subject to such qualifications as local circumstances render necessary."

This Article repeats the intention of Article 11 of the East Africa Order in Council, 1897, Article 15 of the East Africa Order in Council, 1902, and Article 1 >f the East Africa Order in Council, 1911. That is, from the time Her Majesty's Government began to exercise dominion over an area of East Africa, now the Colony, the Supreme Court was empowered to exercise a jurisdiction over children in accord with the common law, doctrines of equity and statutes of general application then in force in England and to make competent use of powers, procedure and practice as used in the Courts of common law and equity in England. I accept that the Custody of Children Act, 1891, was not a statute of general application or applied specifically to this Colony, as were not the Guardianship of Infants Acts, 1868 and 1925. A father could competently have applied, by petition, to the Supreme Court for an -order for custody against the mother of his child of tender years. The Supreme Court's common law jurisdiction could also have been invoked (as I consider it still can be invoked), by an application by the father for a rule *nisi* to show cause why a writ of *habeas corpus* should not issue. That is, unless that procedure and practice which was to be altered by the applied Civil Procedure Code of India for the common law and doctrines of equity were to be exercised only in so far as that Code did not apply.

Section 647 of the Code of 1877, as first applied to the East Africa Protectorate (as it then was), ran as follows:-

"The procedure herein prescribed shall be followed, so far as it can be made applicable, in all proceedings in any court of civil jurisdiction other than suits and appeals."

In construing the section, the Privy Council stated, in *Thakur Prasad v. Fakir-Ullah,* (1895), **I. LR.** 17 **All.,** page 106:-

"Their Lordships think that the proceeding spoken of in section 647 include original matters, in the nature of suits, such as proceedings **in** probates. guardianships and so forth, and do not include executions."

Section 141 of the Code, 1908: -

"The procedure provided in this Code in regard to suits shall be followed, as far as ·it can be made applicable, in all proceedings in any Court of civil jurisdiction."

This section with the substitution of the "Ordinance" for "Code" and the omission of the commas, is identical with section 89 of our Civil Procedure Ordinance, the. section forming one of the bases of the respondent's argument.

The Code of 1908 was not applied to the Colony of Kenya (as it had then become), by Article 4 (2) of the Kenya Colony Order in Council of 1921, because of section 2 of the Indian Acts Amendment Ordinance, Cap. 2, having been passed on 21st March, 1908 (the relevant date given in the Ordinance being 27th November. 1907), nevertheless the Indian decisions on section 141 are instructive because of the derivation of section 89 of the Civil Procedure Ordinance from section 141 of the Act. The marginal note on both the Indian and Kenya sections is "Miscellaneous Proceedings". Do such sections apply to al1 matters not being proceedings in execution? How far did or do these sections affect the procedure afforded by the Orders in Council? Has any special procedure been enacted in Kenya enabling the use of petitions for custody of children? Are all proceedings however originating to be straitjacketed into the procedure provided by the Civil Procedure Ordinance and does such procedure inevitably provide for the originating procedure? Does the Civil Procedure Ordinance exclusively legislate the procedure for instituting all civil proceedings?

"Its object (i.e. section 647) is rather to apply to proceedings other than suits and appeals procedure, that is, the mode of trial and the procedure incidental and ancillary thereto which the Code provides for suits and appeals generally." Ningappa v. Gangawa, (1886) 10 Bom. 434.

"It should be observed that the procedure prescribed by the Code is applicable not only to a suit, but also to the miscellaneous proceedings the intention being that it should be as widely applicable as possible—see section 647 of the Code. Minatoonnessa Bibee v. Khantoonnessa Bibee. (1894) I. L. R. 21 Cal. 483.

In Ram Gopal v. Shanti Lal. (1941) I. L. R. All. 812, it was said: —

"... the contention is that proceedings under section 144 do not amount to a suit. The word 'suit' has not been defined by the Civil Procedure Code, but in Hansraj Gupta v. Official Liquidators of Dehra Dun, etc. Co., the Privy Council ruled: 'The word "suit" ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint'."

Section 26 of the Indian Civil Procedure runs: —

"Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed"

this begs the question of definition but "suit" is defined in section 2 of the Civil Procedure Ordinance quid vide: -

"Suit' shall mean all civil proceedings commenced in any manner prescribed."

Even as late as 1951 no rules had been framed under the Indian Code prescribing any other manner of instituting suits. According to the definition section 2 (16). under the Code, "prescribed" means prescribed by rules and an identical definition is found in the Ordinance. "Rules" are defined in section 2 as "rules and forms contained in the First Schedule or made under section 122 of or section 125" whereas in Kenya the corresponding definition in section 2 of the Ordinance is "rules and forms made by the Rules Committee to regulate the procedure of Courts". The Rules Committee is constituted and given its jurisdiction under section 81 of the Ordinance.

In Ram Gopal v. Shanti Lal, (1914) I. L. R. All. 815, it was said: -

"We have got to interpret the word 'suit' as used in the Second Schedule and we find no warrant for extending its meaning beyond the one to be evolved out of section 144 and section 26 of the Civil Procedure Code."

In the goods of Lilian Singk, (1942) I. L. R. 2 Cal. 194, two petitioners applied by petition for letters of administration in different Courts. Application was made for stay of procedure under section 10 of the Code of Civil Procedure on the ground that this section was applied to the petition proceedings by section 141. It was argued *contra* that section 141 does not convey any substantive right; it only extends the procedure provided in the Code in regard to suits to proceedings in a Civil Court, contemplating that the internal procedure regulating the conduct of the trial of a suit should be followed in all proceedings in a Court. Section 10 empowered a party to a suit to get a suit stayed. It was a substantive right and not a matter of procedure, and was limited to suits and had no application to proceedings for letters of administration. This argument did not find favour with the Court which ruled that section 10 was applied to the petitions by reason of section 141 and that it was now well settled that it included all proceedings relating to original matters in the nature of suits such as an application for probate or letters of administration. The section was not limited to the internal procedure regulating the conduct of the trial of a suit but it embraces wider

matters of procedure viz.: "procedure provided in this Court in regard to suits". "Section 10 was therefore applied by section 141." The case distinguishes "suit" from "other civil proceedings" although applicable procedure applied after the "proceeding" was commenced.

There seems little room for doubt that, after the application of the early Orders in Council, before and after the turn of the 19th century, the Supreme Court was clothed with an identical jurisdiction as that exercised by the English Courts of Chancery to entertain applications for orders for the custody of children. The ancient procedure was, by petition, for an order, being the summary mode of application in the Chancery Courts. Had this been the procedure, without more, it would seem that, although it was competent to originate proceedings by petition in the Supreme Court, in the absence of any other rules, then by the effect of sections 647 and 141 of the Indian Codes of Civil Procedure applied to the Protectorate, so far as applicable the procedure in the Code would have applied to the petition proceedings which would have been classed as a *miscel*laneous civil proceeding not amounting to a suit. But, in fact, the ancient English procedure had been modified before any Order in Council was applied to East Africa and that as early as 1883 and by the Rules of the Supreme Court in England. I refer to Order 55 of the 1883 Rules, an order still in force at the present day in England. Although this Order lays down a procedure to be followed to obtain an order for the custody of a child, it does not go so far as to forbid the ancient procedure by petition. According to Halsbury, Laws of *England*, 2nd edn., Vol. 17, page 659, para, $1377$ : —

"Proceedings by parents with regard to the custody or guardianship of infants may be commenced in the High Court by writ of *habeas corpus* or by petition or by an originating summons. ... " That is until modern times and indeed up to the present day, procedure by petition is regarded as still competent. Indeed, it renders an alternative to the other procedure by originating summons contained in Order 55, rule 2 (12) R. S. C.

## I refer to R. S. C., Order 55, rule $2:$ —

"The business to be disposed of in Chambers by Judges of the Chancery Division shall consist of the following matters in addition to the matters which under any other rule or by statute may be disposed of in Chambers"; as well as to In re Bethlehem and Bridewell Hospitals, (1885) 30 Ch. D. 541 (a case still recognized as an authority, under the rule, by the Annual Practice. 1955 edn. at page 1092), for the proposition that the applicant, at his own risk, has an option of proceeding under the rule by petition or summons. It was contended in the last case that the application came directly within Order 55, rule $2(7)$ of the 1883 Rules (which so far as relevant do not differ from the rules at the present day) and should have been by summons and that the Court had no jurisdiction to make the order on a petition. Chitty, J., said: -

"I think I ought to allow the costs of these petitions. I wish to give the fullest and fairest interpretation to Order 55 and when I see that the cheaper and better course is to apply by summons I should at least not allow the costs in presenting a petition. But there are cases in which it is really much cheaper to apply by petition and in such a case not to make an order or to disallow the costs would be monstrous. Cases where a petition is preferable are not unusual... The practice in my chambers (i.e. applications under the Lands Clauses Act) is to require a written statement which is often as long as and practically is, an imperfect petition. . . There are therefore cases in which a petition would be rightly presented and in my experience I have found cases where it would be far cheaper to proceed by petition. . . . That the Court has a discretion in a case like the present is

well established. Rules of Supreme Court, 1883, Order 60, rule 1 (now Order 70, rule 1) provide that non-compliance with any of the rules shall not render any proceedings void unless the Court or Judge shall so direct and goes on to confer in such cases upon the Court or Judge a most ample discretion. Looking at the cases before me I am of opinion that expenses and trouble have often been avoided by presenting petitions. . . I have to add that where it is possible to proceed either by petition or summons and the application is made by petition, the applicant's choice of procedure rests with himself and at his own peril."

That is, the learned Judge (who was a recognized master in procedure), overruled the submission that he had no jurisdiction to entertain a petition under Order 55, rule 2, and ruled an option which depended upon commonsense considerations of what was the better course.

Therefore, as the procedure in England, as at the 12th day of August, 1897, applied in the Colony (which is the term of the Orders in Council), then the proper procedure was that laid down by Order 55, rule 2 (12) which was, from the outset of the jurisdiction of the Court, by an originating summons, but, in such circumstances as outlined by Chitty, J., the older and more formal procedure by petition was perfectly competent and indeed preferable. Where an applicant elected to proceed by petition and the Judge in Chambers considered a summons sufficient it was curable by a simple restriction of costs. Any irregularity could be met under the procedure and practice available. None of this practice in the least suggests, as the respondent has submitted here, that the petition, if irregular should be dismissed with costs. Nor does any of the law or practice reviewed, either in England or in India, support the respondent's submission that these proceedings must be instituted not in summary form but by the most cumbersome and formal method laid down by any rules and that is by plaint.

It may be that doubts were expressed in the Protectorate as to the procedure available in view of the application of the Indian Code and, in 1911, steps were taken to formulate rules appropriate to applications for an order for custody. rules, to all intents and purposes, identical with Order 55 R. S. C. I refer to the Rules of Court, Part VI, Transaction of Business in Chambers, Volume 5, Laws of Kenya, page 430. These rules of procedure could not have been made by virtue of the powers contained in the Civil Procedure Ordinance (at that time unconceived), but under Article 22 of the East Africa Order in Council, 1902, and Article 11 of the East Africa Order in Council, 1906, by the High Court with the approval of the Governor.

"Subject to the provisions of any Ordinance, the High Court may, with the approval of the Governor, make rules regulating the procedure and practice of the High Court and of all other Courts which may be established in East Africa."

This Article is repeated by Article 9 of the Kenya Colony Order in Council. 1921. viz.: $-$

"Subject to the provisions of any Ordinance, the Supreme Court may, with the approval of the Governor, make rules for regulating the practice and procedure of the Supreme Court and of all other Courts which may be established in the Colony."

By Article 11 of the Order in Council of 1921, the East Africa Order in Council, 1902, ceased to apply to the Colony subject to the proviso that:-

"Where other provision is not made by Ordinance, any law, practice or procedure established by or under the said Orders and all Acts of any legislature in India now in force in the Colony shall remain in force until such other provision is made." No other provision appears to have been made.

By the powers granted under these Articles procedure rules were made as follows: $-$

"1. The business in chambers of the Judges of the Supreme Court and of the Subordinate Courts shall be carried on in conjunction with their Court business."

(The similitude of this rule to rule 1 of Order 55, R. S. C. is very marked, $viz$ : —

"1. The business of the Judges of the Chancery Division shall be carried on in conjunction with their Court business.")

Next, Kenya rule $2:$ —

"The business to be disposed of in chambers shall consist of the following matters, in addition to the matters which under any other rule or by Statute, Act or Ordinance may be disposed of in chambers."

(Compare with R. S. C. Order 55, rule $2:$ —

"2. The business to be disposed of in chambers by the Judges of the Chancery Division, shall consist of the following matters, in addition to the matters which under any other rule or by statute may be disposed of in chambers.")

Further, comparing Kenya sub-rule 2 (1) with R. S. C. rule 2 (1); Kenya rule 2 (2) with R. S. C. rule 2 (3); Kenya rule 2 (4) with R. S. C. rule 2 (10); Kenya rule 2 (5) with R. S. C. rule 2 (12) and Kenya rule 2 (9) with R. S. C. rule 2 (18) these Rules are found to be either exactly similar in intent or (more often), identical in language. So much so that it is reasonable to infer the Part VI of the Rules of Court was a transcript of Order 55, R. S. C., particularly as it then stood unamended and was meant to have the same force and effect. In other words it applied Chancery practice in chambers to the equity practice in chambers of the Supreme Court.

In particular, the Kenya rule 2 (5) (which is identical with the R. S. C. subrule 2 (12) is relevant and important for it runs: $-$

"(5) Application as to the guardianship and maintenance or advancement of infants."

According to the Annual Practice, 1955 edn., page 1106, R. S. C. sub-rule 2 (12) is appropriate to applications for the custody of children under the Custody of Children Act, 1891, which is the prototype of the Custody of Children Ordinance, 1926. The practice under the rule in the Chancery Division is, that an originating summons is necessary if there has been no previous application, otherwise by ordinary summons, but practice also permits ancient procedure by petition.

These Rules appear, for the first time, in Vol. 13 of the Ordinances and Regulations of the East Africa Protectorate dated 1912. They have never been revoked and appear in Volume V of the Revised Edition of the Laws of Kenya, 1948. By section 10 of the Revision of Laws Ordinance, No. 87 of 1948, this edition is the only authentic edition of the Laws of Kenya, and, by section 7 thereof, these Rules contain the rules in force in the Colony, on 21st September, 1948. Since that date till now Part VI has not been revoked.

I may add that, if the procedure cannot follow the rules in Part VI, then plainly it is still by petition. See In re Cox; Public Trustee v. Eve, 54 T. L. R. 527, and In re Hicks, (1894) 63 L. J. (N. S.) Ch. 568, both of which cases rule that where the original Chancery procedure was by petition, that proc.edure is to befollowed whenever the application cannot be brought under Order *55.*

I shall now have to consider if the Civil Procedure Ordinance affected procedure. This Ordinance came into force on 31st January, 1924. Section 3 of the Ordinance ·enacts: -

"In the absence of any specific provision to the contrary nothing in this Ordinance shall be deemed to limit or otherwise affect any speciaI jurisdiction or power conferred or any special form of procedure prescribed. by or under any other law for the time being in force."

The Ordinance does not provide specifically to limit the power of jurisdiction of the Court in relation to the custody of children. It is purely a procedural statute. Jt would be surprising to find in such an Ordinance in any limitation of the Court's jurisdiction to make orders for the custody of children conferred upon it by the Orders in Council. Does it limit the special procedure prescribed by the Orders in Council and by the Rules of Court, Part VI?

On this topic remarks made by the Court of Appeal for Eastern Africa in· *Mansion House v. Wilki11s011,* (1954) 21 E. A. C. A. 98, are highly relevant.

Briggs, J. of A., after citing section 3 of the Civil Procedure Ordinance· said:-

"One of the laws creating such special jurisdiction is the Companies· Ordinance. which gives the Court certain powers and duties quite remote from anything directly contemplated by the general provisions of the Civif Procedur.e Ordinance."

He then cited section 286 (1) of the Companies Ordinance and went on to say:-

"Jt is clear that such rules could, in accordance with section 3 of the Civil Procedure Ordinance, introduce, for the purpose of winding-up of companies, methods of procedure distinct from those prescribed by the Ordinance or Rules of Court made thereunder.· ... " ·

He then went on to cite the application to Kenya of the Companies. (Winding-up) (Amendment) Rules, 1929, by section 354 of the Companies Ordinance and he commented: -

"Sub-section (2) is particularly important as showing that the provisions. of the English Rules on matters of procedure and practice are to be imported into local law .... "

Later; the learned Justice of Appeal cited section 89 of the Civil Procedure-Ordinance and said: -

'This makes it clear that the Supreme Court may have to entertain proceedings which are not 'suits' within the meaning of the Ordinance. I next consider whether this proceeding was a 'suit' in that sense. In section 2 of the Ordinance 'suit' is defined to mean 'all civil proceedings commenced in any manner prescribed'. One might imagine that this would mean 'prescribed by any written law': but it does not, for 'prescribed' is again defined by the same section to mean 'prescribed by rules' and 'rules' are defined to mean 'rules and forms made by the Rules Committee to regulate the procedure of Courts'. The Rules Committee is clearly that created by section SI of the Ordinance. Accordingly a 'suit' is any civil proceeding commenced in any manner prescribed by rules and forms made by the Rules Committee to. regulate the. procedure of Courts under section 81 of the Ordinance. Mr. Khanna contended that 'suit' must for the purposes of this appeal he construed in a more liberal sense, under the overriding provision against repugnancy which governs the whole of section 2. Without giving reasons at the moment I would say that it is here that I must differ from his views. I am unable to discover any repugnancy whatever, and I consider that 'suit' must for the purposes of these proceedings have its precise and statutorily defined meaning."

He then went on to consider whether or not procedure by originating motion was competent in Kenya law but, without deciding the point, said there might be such procedure available under Order 50, rule 1 of the Civil Procedure (Revised) Rules, 1948, and he recognized the anomaly that, if this were so, then, whereas an originating motion, in England, ended in an order, in Kenya, it would necessarily fall within the definition of a suit and end in a decree. He set opposite one another the definition of "order" and "decree" in section 2 of the Civil Procedure Ordinance and said "It seems clear that, whereas decrees arise only in suits, orders may arise in proceedings which are not suits. ..."

Later he commented: —

"If it be accepted that in the present case the application to the Supreme Court was made under a special procedure laid down by legislation other than the Civil Procedure Ordinance and Rules, and was therefore, not a 'suit' in the specialized sense which they adopt, the question whether it may have been a suit in any wider sense is irrelevant for the purpose of deciding whether it resulted in a decree. In Kenya a decree, within the meaning of section 2 can prima facie be passed only in a suit within the meaning of the same section. The Court's adjudication on any other matter is an order, unless some special law provides it shall be otherwise as section 79 in effect does in the case of an appeal from a rent board. It is, of course. obvious that in the ordinary use of words the Supreme Court made an order and it is equally clear that in England the Court would have made an order in similar circumstances. I confess to a sense of some relief in not being obliged to hold that in Kenya this act of the Court was a decree; but enough has been said to show that in many cases not very dissimilar. one might be obliged so to hold."

Worley, Acting P., said: $\rightarrow$

"I will only add a few words with reference to Mr. Khanna's submissions ... that every proceeding in the Supreme Court of Kenya must be a suit $\dots$ these points are answered by section 79 (b) of the Civil Procedure Ordinance which clearly contemplates that an order can be made under a 'special or local law' and not under the Ordinance..."

Quite plainly, therefore, the Court of Appeal was of the view that there could be miscellaneous civil proceedings outwith the meaning of "suit" in the Civil Procedure Ordinance and it would follow that these might originate in the manner prescribed or, indicated historically, by the "other law" which term would comprehend an Order in Council. Such proceedings not being suits could not end in decrees but only in orders. It would seem to follow that procedure by petition would end in an order and not in a decree and this would be in accord with English practice. That is, not all civil proceedings must, necessarily, be straitjacketed into a suit procedure nor necessarily be instituted by presenting a plaint, nor end in a decree.

In Saint Benoist Plantations Ltd. v. Felix, (1954) 21 E. A. C. A. 105, Briggs, J. A., said: $-$

"It seems clear from section 4 (2) of the Order in Council that if the local statute law provides a form of procedure for any specific proceeding that form must be adopted. It is only where no form is provided that one

is thrown ·back on English procedure as on 12th August, 1897. The local provision may be in the most general ~erms and may require to be worked out in detail in accordance with Engl/sh practice .... "

The Rules Committee derives its constitution from section 81 and it has exercised its powers in making the Civil Procedure (Revised) Rules, 1948. No doubt the Rules Committee did not make Part VI of the Rules of Court because these Rules were made some 13 years before the Rules Committee existed. Therefore a proceeding under Part VI, although a proceeding in Court of civil jurisdiction, cannot possibly be termed a suit because it does not originate in Rules prescribed by the Rules Committee. Therefore it is a proceeding which properly ends in an order and could not end in a decree.

I have searched the Ordinance and the Rules and I have found nothing prescribed by the Rules Committee which limits or otherwise affects the special form of procedure prescribed for proceedings dealing with the custody of children. Nor indeed could that special form of procedur.e be deemed to be affected, according to section 3 of the Ordinance, "in the absence of any specific provisions to the contrary".

I have now to consider the effect, if any, of the Custody of Children Ordinance, 1926. Sections 3, 4, *5* and 6 are taken from the Custody of Children Act, 1891. In my respectful view, this Ordinance, like its counterpart, the English Act did not legislate for substantive remedy, the prior existence of which it merely recognized and ameliorated. The effect of the Act, according to *Danie/l's Chancery Practice,* Vol. 2, page 1948, was "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 hav.e now statutory authority". In my opinion. neither the Act nor the Ordinance legislate for any new procedure in making an application to the Court. The effect of the Ordinance was therefore merely to enlarge, or in Kenya, possibly merely to declare the equitable powers of the Court and not to provide either new remedies or a new procedur.e. No rules were made under the Ordinance for the logical reason that a rule-making authority, i.e. the Supreme Court under the Orders in Council had already made effective rules and assimilated Kenya practice to that of the Judges in the Chancery Division in Chambers.

Practice in the Supreme Court in applications for the custody of children has not been consistent. *In re the Custody of A. C. B., a Minor,* (1922) 10 K. L. R.' 70, before Barth, C. J., I infer, the procedure was by petition ending in judgment. In *Hamisi bin Ali v. Mariamu binti Ali,* (1929) 12 K. L. R. 51, before Thomas, J .• the procedure was by plaint resulting in a judgment of dismissal. In *Nona binti Baka.ri v. Mauwa: binti Jabiri,* (1933) *15* **K. L. R.** 63, before Lucie-Smith, J., the procedure was by plaint and there was a final judgment. In *Solamalay v. Solamalay,* (1941) 19 **K. L. R.** 50, before Bartley, **J.,** the applicant applied by a notice of motion intituled "In the matter of the Custody of Children Ordimince, 1926'".

The rubric in the report runs: -

"(1) That the procedure to be adopted by a father to enforc~ his rights as a guardian for 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 do not provide for any new procedure in making an application to the Court."

To the second statement of the law no exception can be taken. Against the first, I consider with respect, that the criticism can be levelled that it is too narrow a statement of the law. The learned Judge could not have come to such a restricted interpretation of the procedure applicable, had he had his attention drawn to Part VI of the Rules of Court, which plainly he had not, because he states in his judgment: —

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

## He goes on to comment: $-$

"Before Order 55A, Rules of the Supreme Court, 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. . . In my view by reason of Article 4 (2) of the Kenya Order in Council, 1921, this procedure in force in England on the 12th day of August. 1897, is in force in this Colony."

Now, with respect, my view is that as the Guardianship of Infants, 1886, and 1925 are not statutes of general application and do not apply to this Colony, the procedure afforded by Order 55A, which is specifically devoted by rule 2 to giving effect to the substantive statutory rights given by the Acts, does not apply. Rule 55<sub>A</sub> of the R. S. C. has never applied to the Colony nor have any rules of Court under the Orders in Council been made similar to Order 55A. It is the procedure used under Order 55 and not under Order 55A which indicates historically the evolution of procedure under the Custody of Children Ordinance and Part VI of the Rules of Court.

In the result, the learned Judge ruled that the application before him, which was by notice of motion purporting to be brought under Order 50, rule 1, was misconceived as no such procedure availed the applicant, because all such applications were ordered only as applications in an existing suit and not applications purporting to institute a suit. This was tantamount to a ruling generally that procedure by originating motion was incompetent in the Colony. In so concluding (he had formerly been a Judge in India), he was conceivably influenced by the entire absence of such procedure in the law of India and, indeed, his decision is very understandable by the whole tenor of Indian procedure, which discouraged applications, originating or otherwise.

He ruled, also, that the only procedure competent, in Kenya, for an order for custody of a child was by the ancient English procedure by writ or petition. It is my respectful view, as I have been at trouble to show, that, while both these procedures are available in case of disputed custody of a child the ordinary procedure is by summons in chambers which by its nature must be an originating summons and where a summons is proper by reason of brief pleading then procedure by petition might result in the applicant losing the costs of his petition and being awarded only those of a summons. I am therefore led, historically, to the conclusion that this Court has jurisdiction to entertain petitions as these were the only (although cumbersome method of obtaining summary remedies in the Chancery Division) but their use here should not be extended but rather restricted since other and more summary procedure is now available. Yet, there may be complex cases, where the applicant would be hampered in the presentation of his case were he not permitted to file a petition. At the worst, where a petition had been unnecessarily filed, it is a mere irregularity curable at least under English procedure outlined by Chitty, J., or by section 97 of the Civil Procedure Ordinance. (I should have preferred section 100 as being closer to Order 70, rule 1 R. S. C. but for the words in the third line "any proceeding in a suit" because this is not a proceeding in a suit but a civil proceeding which is not a suit.)

I am now compelled to consider the true meaning of the decision in Mohamed Hassan v. Nana binti Mzee, (1941) 8 E. A. C. A. 12 for if the first sentence of the rubric in that report read by itself, is to be accepted, then my earlier conclusion is already overruled.

In that case, there had been earlier proceedings by petition for custody of a child. No procedural objection was taken at any stage, to that procedure but the unsuccessful party subsequently applied by originating summons to have the order made on the petition varied. The rubric ran: —

"That the proceedings by originating summons were bad," but the sentence is qualified viz.: "They should have been by motion in the original petition proceedings."

I refer to the judgment of Sir Henry Webb, C. J.: $-$

"The appellant has contended that although Order 34 does not includesuch an application as the present among the proceedings which may be commenced by originating summons, yet he was entitled to proceed in that manner because the Custody of Children Ordinance, 1926, lays down nospecial procedure and section 91 of the Civil Procedure Ordinance (now section 89) says that the procedure provided in the Ordinance in regard to suits shall be followed so far as may be applicable in all proceedings in any Court of civil jurisdiction, which he says means that in any proceedings which is not a 'suit' a party can commence either by plaint (as provided by Order IV, rule 1) or by originating summons if he so prefers. He argues further, as I understand it, that as the Custody of Children Ordinance says. nothing about procedure he is entitled to follow the English practice as. laid down by R. S. C. Order 55, rule 2 (12) and Order 55A, rule 2.

In my judgment it is very plain that the procedure adopted by the appellant was wrong. On the face of it the Order made on 23rd March,. 1932, in Civil Case $65/1932$ , was not a final order, but was one liable to be varied in proper circumstances, in fact an application to vary it was madeand refused, but that did not make the original order any more a final order than it had been before. Therefore there was, and is, in existence a pending: proceeding and accordingly by English practice the application should have been by summons in that matter. Here the proper procedure is laid down by Order 48 (now Order 50)."

The *ratio decidendi* of this decision is perfectly clear. The learned Chief Justice ruled that all the appellant's submissions were irrelevant because heought to have applied by motion to vary the order made in a previous petitionproceeding. With the greatest respect, I am of the view that no other decision could have been reached but that decision is not an authority for the propositioneither that proceeding by petition is incompetent and still less is it an authority for the proposition that an original proceeding was incompetent by originating summons. Once more, Part VI of the Rules of Court were not brought to thenotice of the Court. I must dissent from the argument advanced by the appellant that he could proceed by a "suit" by reason of section 91 (or section 89) of the Civil Procedure Ordinance. In my view he could not have done so. I am not in agreement with the appellant's argument where he seeks to invoke Order 55A R. S. C. for I do not think that procedure applies or ever applied in Kenya. Although I do not contend against his argument that no procedure was madeunder the Custody of Children Ordinance, 1926, I must affirm that no new procedure was required, because Part VI, Rules of Court was already in existence. I consider also that, when he says he can apply under the provisions of Order 55. rule 2 (12) he is out of date, that procedure may have applied at one time under~lie Order in Courn::il bu·i. was sup~rseded in the rt;levani part by Part VI of the Rules of Court. Tfie· case fs an authority for the Jimited point upon which it turned.

*I* ~ t *t..,;* I now refer to *Mohamed Hassan v. Nana binti Mzee,* (1944) 11 E. A. C. A. 4, which is a continuation of the dispute referred to in the last cited case. On this occasion the applicant applied on the original petition proceedings by ancillary motion for a variation of the Order. No exception was taken to the procedure or to the origination of the proceedings by petition, Sheridan, C. J ., cited Griffin, C. J ., in *Shariff Abdulla bin Mohamed v. Zwena binti Abedi,* C. A. 20 of 1923 (as already cited) and continued:-

"Since the decision in that case the Custody of Children Ordinance, **1926,** has been passed .... "

Whitley, C. J., commented: -

"That Ordinance deals with special cases rather than with general principles .... "

The Court then considered the application on its merits and on the original petition proceeding.

*In re Meister, Lucius and Brunning Ltd.,* (1914) 31 T. L. R. 28, Lord Warrington said : -

"The first question that arises under this Act (Trading with the Enemy Act, 1914) is how and in what manner the application ought to be made. The present application is inade by petition and it has been suggested to the Board of Trade that, inasmuch as the application is made to th<?. Chancery Division, and, inasmu\_ch as, according to the old practice of the High Court of Chancery, summary applications not in a suit w.ere usually if not universally, made by petition, *ex abundanti cautela,* it•would be safer to proceed by petition. But it is obvious that there are many· cases which may arise in which the.procedure by petition, which is somewhat cumbersome and which . involves some considerable delay, would be an inappropriate and inconvenient mode of pr~eeding and accordingly I have been asked to say what in my opinion is the procedure which may be adopted under the provisions of this Act if the Board of Trade should in any particular case be advised not to proceed by petition. I have no doubt myself that where an Act of Patliament says that an application may be made by motion that application may be made by motion. In the common law Courts b.efore the passing of the Judicature Act the" only mode by which the Court was approached otherwise than by the issue of a writ was by motion .. In the High Court of Chancery \_ it is quite true that the. summary mode of proceeding was usuaJly by petition, but I see no reason,. and I have spoken to all my brothers of ·this Division, except one I think whom *I* have 11ot been able to see, and also to the Master of the Rolls and they all agree with me that, in such a case as the present, :where the Act merely provides for an application and does not say in what form that application has to be made, as a matter of procedure it may be made in any way\_ in which the Court can be approached. Now there is no question about it that the Court can be and frequently is approached by originating motion:· ·

Interpreting these· words and applying them to the instant proceeding, I consider it is plain that the learned Judge was not laying down, as an inflexible rule, that, wherever no form of application is provided by a .statute, the only mode ·of approaching a Court is by originating motion. With a careful choice of words he says that a Court may be approached in any way and one of these ways is by originating motion. He is far from saying that, merely because a

Court can be approached nowadays by originating motion, in future all applications, formerly made by petition, must now be made by originating notice of motion, where no other procedure is laid down. That is, where a Court could be approached by petition under the old practice and no procedure was laid down for an application, it could now be approached as well by motion.

Briggs, J. A., in the St. Benoist Plantations Ltd. v. Felix (supra) commenting upon the implications of the passage cited said:-

"In Mansion House v. Wilkinson this Court left open the question whether the decision in *Solamalay v. Solamalay* was correct but it now seems necessary to say that in our view it was not. Rules 1 to 6 inclusive of the Kenya Order (Order 50) are clearly modelled on the English Order 52 and the deliberate extension, here, of the scope of rule 1 seems to indicate that the local order should be construed liberally. Applications of many kinds which were not competent at all in 1897 can now be made under statutory authority to the Court. It is reasonable to suppose that the Rules Committee in 1947 desired to make provision for these. In support of the opposite view two considerations may be urged. First, that a suit instituted by a plaint is the omnibus procedure in this country, or, alternatively, that original appli-<br>cations should be made here by petition. We think that an appropriation should properly be regarded as something distinct from an action or suit commenced by a plaint. In many cases the relief sought might be obtained by action—sometimes by claiming a declaration; but an application should in the ordinary sense be a summary proceeding, something simpler and shorter than an action. As regards petitions, we do not wish to say anything which might seem to limit the jurisdiction of the Supreme Court to entertaining petitions but their disadvantages are sufficiently stressed by Lord Warrington and it is not desirable to extend their use. The practice of the Indian Courts in this respect appears to have been adopted faute de *mieux* and should not be followed here.'

Once again Part VI of the Rules of Court did not come within the purview of the Court of Appeal, plainly because they were not necessary to the decision. But the remarks of the learned Justice of Appeal accord with those of Lord Warrington. The jurisdiction of the Supreme Court to entertain petitions is not limited; petitions may be cumbersome and their use should not be extended, as their use had so to be in India for want of a better summary procedure; summary applications are to be distinct from a suit and to be brought by something simpler and shorter than plaint procedure (and it is to be observed that petition procedure is shorter or, ought to be shorter, than procedure by suit).

The judgment went on to hold that the application by originating motion was competent under Order 50, rule 1, and it was on this ground that Solamalay v. Solamalay was overruled for that decision held that there was no summary procedure open to the applicant by originating motion. In overruling that decision the Court of Appeal cannot be found to have ruled that procedure by petition under the Orders in Council was no longer competent but by reason of finding that an originating motion was within the definition of a suit, was forced to the conclusion that it must result in a decree and not in an order, whereas a petition ought to end in an order, as is Chancery procedure and that this is so is recognized by section 13 of the Custody of Children Ordinance, 1926.

Had Part VI of the Rules of Court been brought to the notice of the Court of Appeal, in the last case, the decision in *Solamalay v. Solamalay* would still, I consider with the utmost respect, inevitably have been partly overruled, but the Court of Appeal was not obliged to consider what procedure ought to have

been adopted in *Solamalay's* application or whether in that case procedure by originating notice of motion was competent or alone was competent. It is my view that procedure by originating notice of motion was not open to Solamalay and that the learned Judge in that case was correct in dismissing the application although on grounds later held erroneous by the Court of Appeal. He had ruled that the motion was incompetent because no procedure by originating motion existed in Kenya. The Court of Appeal corrected this by holding that such procedure did exist. In my view, the only procedure open to Solamalay was to apply by writ or by originating summons or by petition in accord with Part VI of the Rules of Court and the practice gloss thereon. Suit procedure was excluded by the operation of section 3 of the Ordinance because another special procedure had been prescribed for commencement. It was the reasons for and not the mere dismissal that were overruled by the Court of Appeal.

I consider, therefore, I am correct in holding that, in the instant petition, the applicant petitioner had two courses only open to him. He could have applied by originating summons under the provisions of Part VI of the Rules of Court and this would be the proper and usual course where the summary remedy of custody of a child was sought by order, but, if he considered there were ancillary matters of fact which were unsuitable to compress within the restrictions of a summons, he could make use of the then more suitable vehicle of a petition and this Court would still have jurisdiction to entertain the petition. It can still be approached by petition and it has still jurisdiction to make an order on such a petition. Even if the Court had considered a petition an unsuitable vehicle for the remedy it could have treated a petition as a mere curable irregularity and disallowed the costs of the petition and allowed merely those of a summons. Looking to the instant petition, I observe that it is outwith the usual run of like applications because the applicant is invoking the aid of Hindu law and I consider looking to the authorities he may be entitled to invoke such law being a Hindu as an issue of fact. In my view, this issue might be difficult to restrict within the narrow confines of a summons but, at all events, I am not prepared to say in the circumstances that it must necessarily have been placed within such confines. 1 am not prepared therefore to rule that the procedure adopted was wrong although the petitioner was inclining toward the Hindu Marriage Ordinance, Cap. 149, and the inherent jurisdiction of the Court, neither of which could be competently invoked. By accident, rather than design, he has chanced on the correct procedure under the Order in Council and the Rules of Court. Nonetheless, I rule he may proceed by his petition for custody although the contents of that petition may in part still be open to argument on relevancy. The costs of the debate on the preliminary points of law are reserved for argument.