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Ker v Ker (Divorce Cause No. 25 of 1942) [1942] EACA 20 (1 January 1942)
- Citation
- [1942] EACA 20
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Lucie-Smith, J. (Kenya)
- Case number
- Divorce Cause No. 25 of 1942
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Lucie-Smith, J. (Kenya)
- Case number
- Divorce Cause No. 25 of 1942
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found, based on affidavits, correspondence, and witness testimony, that the respondent committed misconduct with another woman during the relevant periods. The petitioner had also confessed her own misconduct, but this occurred after the respondent had virtually left her. The court determined that, in light of the evidence and the petitioner's candour, its discretion should be exercised in favour of granting the decree nisi. The court also found it appropriate to order the respondent to pay alimony pendente lite to the petitioner.
Court disposition
Decree nisi granted in favour of the petitioner; alimony pendente lite awarded; costs to petitioner.
Orders
- A decree nisi is pronounced in favour of the petitioner as prayed.
- The respondent is ordered to pay the petitioner alimony pendente lite of £10 per month from 1-10-42.
- Costs awarded to the petitioner.
02
Material facts
Parties
Ursula Mary Ker
Petitioner Counsel: ArcherRobert Dermot Paton Ker
RespondentAmounts and remedies
- Alimony Pendente Lite (monthly): GBP 10
03
Procedural history
Posture
Divorce Cause / Judgment
04
Questions and positions
Legal issues
- 01
Whether the court should exercise its discretion to grant a decree nisi for dissolution of marriage.
- 02
Whether the evidence establishes misconduct by the respondent justifying divorce.
- 03
Whether the petitioner is entitled to alimony pendente lite.
Party arguments
- Applicant
- The petitioner provided evidence of the respondent's misconduct with another woman during August and September 1942, supported by witness testimony and correspondence. The petitioner also made a full and frank confession of her own misconduct after the respondent left her in 1941, arguing that the court's discretion should be exercised in her favour for dissolution of the marriage and for alimony pendente lite.
- Respondent
- The respondent did not appear and did not present any argument.
05
Court’s reasoning
Legal principles
- 01
Filmer v. Filmer D. C. 1/42; Herod v. Herod (1939) P:11
The court has discretion to grant a decree nisi for dissolution of marriage where evidence of misconduct is established and the petitioner has made a full and frank confession of any misconduct.
06
Ratio, limits and disposition
Ratio decidendi
The court found, based on affidavits, correspondence, and witness testimony, that the respondent committed misconduct with another woman during the relevant periods. The petitioner had also confessed her own misconduct, but this occurred after the respondent had virtually left her. The court determined that, in light of the evidence and the petitioner's candour, its discretion should be exercised in favour of granting the decree nisi. The court also found it appropriate to order the respondent to pay alimony pendente lite to the petitioner.
Obiter and limits
- The discretion statement was handed to the Judge in a sealed envelope, perused, and returned to the petitioner's advocate with an undertaking to produce it if required.
Court disposition
Decree nisi granted in favour of the petitioner; alimony pendente lite awarded; costs to petitioner.
- A decree nisi is pronounced in favour of the petitioner as prayed.
- The respondent is ordered to pay the petitioner alimony pendente lite of £10 per month from 1-10-42.
- Costs awarded to the petitioner.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
DIVORCE JURISDICTION
BEFORE LUCIE-SMITH. J.
URSULA MARY KER. Petitioner
$\nu$ .
ROBERT DERMOT PATON KER, Respondent.
Divorce Cause No. 25 of 1942
Divorce—Dissolution of marriage—Discretion Statement.
*Held* (1-10-42).—That this was a case in which the Court should exercise its discretion.
Archer for Petitioner.
No appearance of Respondent.
JUDGMENT.-From the affidavit of the respondent and the evidence of the petitioner I am satisfied that the domicile of the parties is Kenya.
From the Respondent's letter (UK 2) and the evidence of the petitioner I am satisfied that misconduct took place between the respondent and the woman named between the 19th and 24th August, 1942.
From the evidence of Maina, M. de Souza and the petitioner I am satisfied that misconduct took place between the respondent and the woman named at the Avenue Hotel during the month of September, 1942. The petitioner has made full and frank confession of her own misconduct subsequent to the respondent virtually leaving her in 1941 and I am satisfied that this is a case where the discretion of the Court should not be refused—See Filmer v. Filmer D. C. 1/42 and Herod v. Herod $(1939)$ P:11.
I pronounce a *decree nisi* in favour of the petitioner as prayed.
I further order that the respondent do pay to the petitioner by way of alimony *pendente lite* the sum of £10 per month, as from $1-10-42$ .
Costs to petitioner.
Practice Note.—In this case the "discretion statement" was handed to the Judge in Court in a sealed envelope. Having perused the statement the Judge returned the same to the petitioner's advocate against his receipt and undertaking to produce if so required.
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