Ogutu & another v Okumu

High Court, at Kisumu 1982

Schofield J

Civil Appeal No 15 of 1982

(Appeal from the District Magistrate’s Court at Rongo)

Constitutional law - constitutional rights - fundamental rights - right to personal liberty - personal liberty of a wife versus rights of the husband under customary law - court ordering that wife be returned to her husband - whether such a court order is proper - whether wife’s constitutional right to personal liberty was infringed - where court order has the effect of unconstitutionally holding a person in servitude.

Customary law - application of - when courts may be guided by African customary law - when customary law may not apply where it is repugnant to justice - when customary law is inconsistent with written law.

Husband and wife– rights of – right to personal liberty - whether wife may be obliged to reside with husband – court ordering that wife be retrned to husband – ex-wife not a party to the suit – whether court order proper.

Natural justice - rules of - when a decision of the court is contrary to the rules of natural justice - court making a decision adversely affecting a person not a party to the suit.

Children - orders relating to - factors to be considered when making orders affecting children.

The first appellant was the father of one R, who was married to the second appellant in 1963 and bore him one child. About ten years later, R left the second appellant and began to live with the respondent as husband and wife, bearing the respondent two children. In 1981, the second appellant, together with three police officers, took R and her three children back to her father, the first appellant.

In a dispute between the appellants and the respondent before a district magistrate’s court in which dispute R was not named as a party, the court, purporting to be guided by Luo customary law, ordered the return of R and her three children to the respondent.

The appellants appealed against the order.

Held:

1. The court order requiring the wife to return to her ex-husband infringes on the fundamental rights and personal liberty of the person contrary to chapter V of the Constitution.

2. An adult is free to choose their place of residence; it is not within the courts’ jurisdiction to make an order which determines where an adult should reside.

3. The Courts of Justice are to be guided by african customary law in civil cases in which one or more of the parties is subject to or affected by, so far as is applicable, provided that it is not repugnant to justice or inconsistent with any one written law. In this instance the custom requiring the ex-wife to be returned to her husband was contarry to the Constitution and was repugnant to justice.

4. When the courts are making orders that affect children, the issue should be considered seperately and the best interests of the child must be given paramount consideration.

Appeal allowed.

Cases

1. Republic v Kadhi, Kisumu Ex parte Nasreen [1973] EA 153

2. R v Jackson [1891] 1 QB 671

Statutes

1. Constitution of Kenya chapter V

2. Judicature Act (cap 8 ) section 3(2)

3. Civil Procedure Rules (cap 21 Sub Leg)1982,