Sheppard v Sheppard and Another (Divorce Cause No. 35 of 1954) [1955] EACA 207 (1 January 1955)

### DIVORCE JURISDICTION

Before CRAM, Ag. J.

# MAY CARFRAE KERR SHEPPARD, Petitioner ν.

## RONALD WALTER KERR SHEPPARD AND ANOTHER, Respondents

### Divorce Cause No. 35 of 1954

Divorce—International Private Law—Reciprocity—Civil Procedure and Practice —Judgments Extension Ordinance, Cap. 14—Matrimonial Causes Ordinance, Cap. 145—Application to transfer for execution decree of divorce with order for costs to Uganda Protectorate—Whether reciprocal provision—Order for costs—How enforceable—Costs.

A woman obtained a decree for divorce, in the Supreme Court of Kenva. along with an order for costs against her husband, the respondent. She discovered he had obtained employment in Uganda and applied by summons in chambers for an order that "the decree with certificate of non-satisfaction be transferred to the High Court of Uganda for execution". At the hearing the Court inquired the nature of the reciprocal provisions under which the applicant purported to proceed.

Held (19-7-55).—(1) The reciprocal provisions under which an order for transfer of a decree<br>may be made are contained in the Judgments Extension Ordinance, Cap. 14, Laws of Kenya, 1948, and Cap. 7, Laws of Uganda, 1951, respectively, but such decrees are<br>restricted to those for "any debt, damages or costs" and there is no provision for<br>the simple transfer of decrees of another sort. A divorce sort and although there was an ancillary order for costs no provision was made for the transfer of a decree of divorce for execution.

(2) The applicant had not attempted to extract a decree for costs simpliciter (if that were competent) but had not a decree for costs but an order for costs. There was no provision for the simple transfer for execution of an order for costs in a divorce proceeding. The application was dismissed with an order that the applicant bear her own costs.

Semble: While reciprocal provisions for the enforcement of orders as "judgments" appeared in the Kenya Judgments Extension Ordinance, Part I, and in the Uganda<br>Reciprocal Enforcement of Judgments Ordinance, Cap. 12, section 5 of the former and<br>and section 6 of the latter Ordinance made these provisions G by order of the respective Governors in Council and no such reciprocal proclamations have yet been made.

Case cited: Finch v. Finch, (1955) 28 K. L. R. 202.

Compared in pari materia: Judgments Extension Ordinance, Cap. 11, and Reciprocal Enforcement of Judgments Ordinance, Cap. 12, Laws of Uganda, 1951; Administration of Justice Act, 1920, Part II.

### Wilcock for applicant.

RULING.—The applicant, a woman who obtained a decree of divorce in the Supreme Court of Kenya, applies by summons in chambers for an order that "the decree with certificate of non-satisfaction be transferred to the High Court of Kampala, in the Uganda Protectorate". The accompanying affidavit makes it clear that the object of the transfer is not to enforce the decree of divorce but to enforce an order for costs made in the divorce proceedings, which the respondent has failed to pay. The respondent is now alleged to be residing, out of the jurisdiction, in Uganda.

The application is similar to that made in Finch v. Finch reported (supra), page 202, except that in that cause the application was for transfer to the Resident Magistrate's Court in Tanganyika Territory. As I remarked in that ruling, although the summons does not invoke any particular law, the only law it can conceivably invoke is in the realm of reciprocity, since the legislature in Kenya could not legislate so as to confer a jurisdiction upon the courts in Uganda. It is therefore to the mutual laws of Kenya and Uganda that this Court must look before it can accept the invitation to make any order. The Judgments Extension Ordinance, Cap. 14, Laws of Kenya, has its counterpart in the Judgments Extension Ordinance, Cap. 11, Laws of Uganda, 1951, which latter according to its long title is "an Ordinance to make provision for the execution by the Courts of the Protectorate of Decrees and Warrants in court cases made and granted by the Courts of Kenya, Nyasaland, Tanganyika and Zanzibar". That is, the Ordinance sets out to provide a simpler method by "execution" rather than enforcement which involves registration. Section 2 recites that the courts in Uganda will receive certain decrees of the Kenya courts on transfer but these are restricted to those for "any debt, damages or costs". That is decrees for a sum of money. As ruled in *Finch v. Finch*, as in Tanganvika, the legislation in Uganda makes no provision for the mere transfer of decrees of any other sort. A decree of divorce is a decree of another sort and in my view cannot be transferred for execution in the Protectorate of Uganda and as it cannot be so received, the courts in Kenya should not make an order for transfer for such an order would be incompetent as well as ineffectual. Even if the decree for divorce is alleged to contain an order for costs the position is not altered. As in Finch $v$ . Finch, what the petitioner obtained was a decree of divorce with an ancillary order for costs and this was obtained in Kenya under the peculiar statutory matrimonial jurisdiction afforded by the Matrimonial Causes Ordinance, Cap. 145 and Rules. Rule 66 provides that upon certificate of taxation an order of the Court for payment of costs may issue, and such an order may be contained in a decree nisi but it is still an order. How it is enforced in Kenya I do not have to decide.

An order for costs may or may not be extractable in Kenya as a separate decree. This may be a point which would one day have to be decided. I do not think it can be. In England, it is enforced as an order of the Divorce Division and, as I indicated in $Finch$ v. $Finch$ , an order for costs in a matrimonial proceeding fell within the definition of "judgment" contained in section 12 (1) of the Administration of Justice Act, 1920, and could be registered as a judgment for enforcement under the provisions of that Act. That Act, by section 13, has been extended to the Protectorate of Uganda on the ground that reciprocal legislation has been enacted there and this reciprocal legislation is to be found not in a part of the Judgments Extension Ordinance, as in Kenya legislation, but as a separate Ordinance, the Reciprocal Enforcement of Judgments Ordinance, Cap. 12, Laws of Uganda. An identical definition of "judgment" is to be found in section 2 $(1)$ of that Ordinance and consequently an order for costs in a divorce proceeding obtained in the United Kingdom could competently be registered in the High Court of the Uganda Protectorate as a judgment for enforcement.

Does the Uganda Ordinance extend reciprocity to Kenya? Section 6 runs that: $-$

"Where the Governor is satisfied that reciprocal provisions have been made by the legislature of any British possession outside the United Kingdom for the enforcement within that possession of judgments obtained in the High Court of the Protectorate, the Governor in Council may by proclamation in the Gazette declare this Ordinance shall extend to judgments obtained in a

superior court in that possession in like manner as it extends to judgments obtained in a superior court in the United Kingdom and on any such. proclamation being made this Ordinance shall extend accordingly."

Looking therefore to subsidiary legislation under the Ordinance, at page 836 of Vol. VI, Laws of Uganda, 1951, I observe that no more than eight proclamations have been made, the last in 1926, but none extend the Ordinance to Kenya. None of the East African possessions are mentioned. Nor does the Kenya Judgments Extension Ordinance, Part I, under section 5, extend reciprocity to Uganda by any proclamation. The applicant could test the opinion of the Uganda courts by attempting to register a copy there of the decree for divorce with its ancillary order for costs or the order for costs *simpliciter* for enforcement and conceivably this latter could result in an extension of the relevant Ordinances by proclamation or, she could test the opinion of the courts in Kenya by applying to extract a separate "decree" for costs only following upon her order for costs and if successful in showing that such an order could be extracted in that form, then apply for transfer of the decree for costs *simpliciter* for execution in Uganda. Nevertheless I do not consider it is competent so to extract such a decree.

This application as it stands is dismissed. None of the costs thrown away to be chargeable against the respondent.