Public Trustee v Jiwa Bin Bwana Hindi Ganeji (C.A. 43/1931.) [1932] EACA 33 (1 January 1932)

### APPELLATE CIVIL.

### Before LUCIE-SMITH, J.

# THE PUBLIC TRUSTEE of the Colony and Protectorate of Kenya as Trustee of the Estate of Ali bin Abdulkarim, deceased (Appellant) (Original Defendant)

## JIWA BIN BWANA HINDI GANEJI (Respondent) (Original Plaintiff).

## C. A. $43/1931$ .

The Courts' Ordinance (No. 16 of 1931), section 18-Jurisdiction of Kathi's Court-" Mohamedan native "-The Interpretation and General Causes Ordinance (Cap. 1), section 2, and the Courts Ordinance (No. 16 of 1931), section 2-Definition of "native"—Meaning of "origin" and "extraction."

$Held$ (9-3-33):—That a person of Asiatic origin, who has acquired<br>Arab extraction through the inter-marriage of his forebears, is<br>not subject to the jurisdiction of the Kathi's Court, although his<br>family has for generation

This was an appeal from the Kathi's Court at Mombasa. The facts sufficiently appear from the judgment (delivered on $9-3-33$ ).

JUDGMENT.—The only question to be decided in this case is whether the Kathi had jurisdiction to try it.

Ordinance 16 of 1931, section 18, lays down that a Kathi's Court shall have full jurisdiction over Mohamedan natives in all matters relating to personal status, marriage, inheritance and divorce.

Section 2 lays down that the term "native" means any native of Africa not of European or Asiatic extraction, but includes an Arab and a Somali and also any Baluchi born in Africa. It would appear that the "born in Africa" only relates to the Baluchi.

Cap. 1, section 2, defines a native as a native of Africa not of European or Asiatic origin, but shall not include a Somali or Swahili, while Ordinance 2 of 1930 says that "native" means any native of Africa not of European or Asiatic extraction, but includes any Arab and Somali, and also any Baluchi born in Africa.

The broad difference in the definitions under Cap. 1 and Ordinance 16 of 1931 would appear to be the use of the words " origin " and " extraction " respectively. I take it that to-day

one's "origin" would be the fons et origo of one's line so far as available evidence, documentary or otherwise, can carry the without regard to rumour, myth same $\overline{or}$ tradition: "Extraction" would be the various admixtures of bloods whether of the same or different races as one's origin, which have eventually resulted in the production of oneself. For instance, one may well conceive of the case of a person who (so far as historical evidence can prove the same) is of purely English origin, say, 200 years ago and who to-day can claim and rightly claim German, Italian, Dutch and French extraction.

The evidence before the Court in this case would, it appears to me, go to show that Jiwa and Ali Abdul Karim, so far as their Coast history goes were of Indian and therefore Asiatic origin, but that in the 150 years which have elapsed since their primal Coast ascendant took up residence in Africa they have through their forebears by marriage with the Mazurui-the Jenebi Hinawy and the Shariff, and by the election of themselves and their ascendants, acquired Arab extraction. It is not in dispute that for generations their family have professed and practised the Mohamedan religion and that they adopted Arab customs and lived as Arabs.

From the evidence then we have it that Abdul Karim and Jiwa, though of Asiatic origin, are undoubtedly natives of Africa of Indian and Arab extraction. In this connexion the judgment of the Privy Council, in Abdurahim Haji Ismail Nathu v. Halimabai, VI E. A. L. R., page 113, is of interest. I must frankly admit that I have striven to strain what is I think the law to a sufficient extent to enable me to find that these two are Mohamedan natives for, in my opinion, this is a case in which it would be the intention of the legislator that the Kathi's Court should have jurisdiction. Unfortunately, I am unable to avoid the definition of "native" and the use of the words "Asiatic extraction." These two being of Asiatic extraction cannot therefore be Mohamedan natives within the meaning of the Courts Ordinance. The appeal must therefore be allowed with costs.

By consent ordered that plaint herein be returned for presentation to the proper Court.