THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

DIVORCE APPEAL NO.3/93

(PRIG. FILE DIVORCE CAUSE NO.5/93 OF MENGO)
Ro IRUMBA APPELLANT

VERSUS

. ,F. IRUMBA RESPONDENT

BEFORE: THE HONOURABLE MR. JUSTICE F.M.S. SGONDA NTENDE

JU D G M E N T

■The Appellant, Richard Irumba, has appealed to this court against

a ruling made by the learned trial Magistrate Grade I dated JOth

August at Mengo dismissing a preliminary objection raised by the

Appellant.

The brief history of this matter is that the present respondent

filed a petition for divofce in the Magistrates.Court at Mengo on

22/2/93. A reply to- -the' petition was filed on 1^/^/95 and a Cross
petition on the 10/5/93* On 2nd July 1993 a reply to the Cross Peti­
tion was filed, completing the pleadings in the matter.

On 5th July 1992 when the parties appeared before the trial court,
learned counsel for the Appellant (then respondent), Mr. Mugenyi,made
an application and on the other hand raised a preliminary objection.
that
Firstly, he applied the trial Magistrate should disqualify himself

•
due to the fact that he was biased.
» ■ •
The trial Magistrate,on the same
day the application was made, made a ruling dismissing the application
for want of merit. Appeal against the said decision was lodged in this
court on.9/9/93 after the expiry of more than 60 days from the date
of the decision.

• The Memorandum of Appeal refers to the decision of the trial

court as having been made on 30/8/1993. This, without doubt, is wrong
in relation to the ruling dismissing the application to disqualify the
trial Magistrate which was made on 5/7/93. Na explanation as to the
de..ay in fxling *uhe appeal is available on the i*ace of the Mfimnrnnriwn
 v ..
2
wi. ■ ...
of Appeal or even in counsel’s address to this court. In the result,

I can only find that the appeal on that ground is out of time and

cannot be entertained by this court.

However, even if I addressed the merits, of the objection to the

over
trial Magistrate presiding { this matter it is doubtful® to say the
..this

least® if the objection had any merit. As it is not necessary for the

decision I have made now® I will not address myself to that aspect.

Ground No.1 .of the appeal accordingly fails.

The second ground of the appeal was to the effect that:-

The learned Magistrate erred in not

dismissing the petition as it was pre­
mature® misconcieved and bad in law.”

Mro Mugenyi, learned counsel referred to .section 4 of the Divorce Act

which® interalia® provided:-

”4 (D
(2)
Such jurisdiction shall® subject to the
provisions of this Act, be exercised in
accordance with the law applied in
matrimonial proceedings in the High Court
of Justice in England.”

’ Mr • Mugenyi had argued-in the court below^and he repeated the same

arguments here® that by the above provision the law applicable was the

Matrimonial Causes -Act I95.O of England®applied to Uganda. He submitted

that under English Law® and I presume he meant Section 2 of the Matri-

monial Causes Act 1950 of England, no petition for divorce may be

presented until three years after the marriage, unless leave was granted.

He submitted that since the parties married on 25/8/1990 and this

Petition was filed in February JI995® the three years had not elapsed

•and leave of court had not been obtained. He prayed that this Petition

tie dismissed for being premature and bad in law and that it should be

dismissed with costs. He referred ••his. court to the cases of A.B. vs

CiSv <1955/ 28 K..H .210, Bov man (1949) 2 AU E.R* 12? and Halsbury’s Law
 3

Counsel for the respondent similarly rehearsed the submissions

raised in the lower court. He argued that Section 4 of the Divorce

Act applies the Law applying in England. He stated that the Matrimo-

nial Causes Act 1950 was replaced and the law now applicable was the

Matrimonial and Family Proceedings Act 1984 which applied in England

and therefore applies here. He submitted that under the 1?84 Act the

waiting period had been reduced to 1 year from J years. The trial

court accepted the respondents arguments and accordingly overruled the

preliminary objection.

I regret to sc.y that I have not been able to lay my hand on either

the Matrimonial Camuses .let, or the Ma trimon?.al and Family Proceed­

ing Act of 1984, both of England. But from the submissions of counsel

the broad decision to be made in this appeal is whether the jurisdiction

of courts in Uganda is exercised, subject to our Divorce Act, and the

Judicature Act, according to the law applied in the Matrimonial

Proceedings in the High Court of Justice in England ujs n't the time the

Divorce Act came in force in Uganda or as it is applied in England as of

now. The Divorce Act was first enacted into law in this country on
1st October 1904 as Ordinance No.15 of 1904. Since then the Act has

remained substantially the same save for a few amendments brought by

Ordinance No.25 of 1932 and Act 38 of 1964.

Section 4 of Ordinance 15 of 1964 provides

»»4e Jurisdiction under this Ordinance shall

only be exercised by the High Court
(hereinafter called the court) and such
...jurisdiction shallj subject to the pro­
visions of this Ordinance vvbe ^exercised
in accordance with theu.Law applied in
proceedings in the High Ccfurt-of Justice
in England

This Section was amended by Ordinance 25 of 1932 to read as under:-

»4-» (1) Where all parties to a proceeding under

th t; Crdi '.c.ace Are Africans or -./here a

 4

accordance with the provisions of Section

22 jurisdiction may be exercised by a
subordinate court of the first class»

(2) In all other cases jurisdiction shall only

be exercised by the High Court.
Such jurisdiction shall, subject to the
provisions of this Ordinance, be exercised
in accordance with the Law applied in
Matrimonial Proceedings in the High Court
of Justi n in England J*

Under Act 3$ of 1?64, Lhe Magistrates Courts Act, Section 37 substitute.!

the reference to a subordinate court of first class to a Grade I

Magistrates Court.

Since 1904 courts in Uganda have been obliged subject to the Divorce

Act to exercise such jur.sdiction in accordance with the law applied in

the High Court of Justice in England. I would put emphasis on the words

"in accordance with the law applied 11 B This is not restricted to

common law or equity or written law but it is the law applied in the

High Court of Justice in England that is applicable here subject to the

Act.

If one were to accept the argument that this refers to the law as it

was at the time of enactment, that is 1st October 1904, then a fortiori

the Matrimonial Proceedings Act 1950 of England would not apply in

Uganda on the'basis of Section 4 of the Divorce Act. This would be so

because it was enacted 46 years later in England from our reception date

of 1st October 1904. The courts in Uganda would have to ascertain what

law was applied in the High Court of Justice in England as at 1st October

19>4<

Counsel fcr the respondent rejected that view and submitted that the

law applicable in the High Court of Justice in England now was the law

applicable in Uganda -subj-ect to the Divorce Act. As the Matrimonial

Causes Act ^950 was no longer appli able in England, it ?.'as no longer

apr? tcable in ao .'lb submitted that it is now the Matrimonial and

 5
therefore apply here subject to the Divorce Act.

As remarked earlier, If I were to accept Mr. Mugenyi’s argument

that it is the law that was applicable in England at the time of enact-

ment of the Divorce Act in Uganda that is applicable now ? then the

Matrimonial Causes Ad: of 1950 of England does not apply to Uganda*

Mr. Mugenyi based thio argument on the presumption that our Divorce Act

was enacted on thv 1st October 1904 and all subsquent amendments have

not affected the application of the law applied in the High Courv of

Justice in Engla/.d to Uganda undej section 4 of our Divorce Act*

I would however, be more xiiclined to accept the phrase

”in accordance with the law applied n

seems to refer to the lav/ currently applied in' th:e ~ High Court of Justice

in England rather than meaning the law applied at a particular date i.e

1st October 1904. The Divorce--Act was initially intended in 1904 to

apply to marriages under the Christian faith or under the provisions of

the marriage ordinances in force in the protectorates of East Zifrica,

Uganda or British Centra?, Africa. Such marriages wore similar to the

marriages in .England. It was therefore easy to apply the lav; of

England to dissolution of the same. The state of the law to such

marriages was basically the'same here as it was in England and has

remained so.

I would think it was not the intention of the legislature to fix

the reception date of the laws relating to dissolution or divorce of

marriage to a particular date, be-it 1st October 1904 or any other. If

that was the intention, the language of the Section 4 of the statute

would have plainly said so. The intention of the legislature was in my

view that the law being applied in the High Court of Justice of England

at any time would be the law applicable to Uganda for as long as it was

be.iig applied in the High Cent'of Justice in England. .

Mr. M.genyi has contended that even if. that were so by virtue o*

or, cl i ati: •? Act the • u app? ted in the High Court of

.'•‘usLi'e in E**gl,.xa icnliceb’.e to Ikur-; p T 4

 6
Act must be taken to have been frozen on the coming into force of the

Judicature Act*

if his argument is accepted, it would mean that as of the 14th

June 1967 when the Judicature Act came in force, it was the Matrimonial

Causes Act, 195.t which was applied in England and the courts here are

obliged only to look at that law*

Secci jx; $ of the Judicature Act provides:**

”5. (D Pursuant to the provisions of clause (J) of

article 91 Constitution, the High Court
sh°ll‘ be a superior court of record and shall
have full jurisdiction, civil and cr^’r.Inal, over
all persons and over causes and all matters in
Uganda*

(2) Subject io the provisions of the Constitution

and of this Act, the jurisdiction of the High
Court shall be exercised,

(a) in conformity with the written law including

any law in force immediately before the
commencement of this /ict-

(b) Subject to any written law and in so far as

the same does not extend or apply, in confor­
mity with

(i) the common law and doctrines of equity*

(ii) any established and current custom or

usage; and
1
(iii) the powers vested in and the procedure
observed by the High Court immediately
before the commencement of this Act in
so far as any such jurisdiction is consis­
tent with the provisions of this Act; and

(c) Where no express law or rule is applicable to

any matter in issue before the High Court J in
conformity with the principles of justice,
equity and gvod conscience•

(5) The Applied Law. the Common Law and doctrines of

equity shall be in fore a only in co far as the cir-
st'^evs of Uganda and of its people permit, and
». • r.ion qualifications c.s circumstances may
 7
On a reading of section 3(2) of the Judicature xlct, it appears logical

that the jurisdiction of the High Court (and Lower Courts) with regard

to divorce must be exercised in conformity with the written lav/ in force

immediately before the commencement of this Act- The Written Lav/ that

was in force was the Matrimonial Causes Act, 1950* I accept that by­

necessary implication by ”irtue of the provisions of Section 3(2) of the

Judicature Act the Matximor.ial Causes Act, 1950 was the law applied in

the High Court of Justice in England that is applied to Uganda, under

Section 4 of the Divorce Act, subject to the Divorce xlct.

This law is however not only subject to the Divorce Act but is

also subject to what "the circumstances of Uganda and its peoples permit'4

and

"to such qualifications as circumstances

may render necessary."
•
Perhaps this is good a time as any other to answer the question of

whether the 3 year rule prohibing a petitidn for divorce save in very

exceptional circumstances is consistent with the circumstances of the

people of Uganda-

Section 2 of the Matrimonial Causes Act 1950 states:-

"1 No petition for divorce shall be presented to the

court .unless at the date of the presentation of
the petition three years have passed since the
date of the marriage.--

PROVIDED that a Judge of the Court may, upon appli­

cation being made to him in accordance with rules
made under this Act allow a petition to be presented
before 3 years have passed on the grounds that the
case is one of exceptional hardships suffered by
the fetitioner or of exceptional depravity on the
part of the respondent, but, if it appears to the
Court at the hearing of4the Petition, that the
Petitioner obtained leave to present the petition
by any misrepresentation or concealment of the
nature of the case, the Court may? if it pronounces
a decree nisi, do so subject to the condition that
no application to make the decree absolute shall be
made until after the err; av.-inn
 8

the date of the marriage, or may dismiss the

petition, without prejudice to any petition which
may be brought after the expiration of the said three
years upon the same, or substantially upon the same,
facts as those proved in support of the petition
so dismissed.”

It is clear that hardship of the applicant or depravity of the respondent

is not sufficient to found an action in divorce before the expiry of

three years# In addition to the ordinary grounds’ for divorce, the

applicant must show that he or she is suffering exceptional hardship

or' is the victim of exceptional depravity of the respondent before leave

to present a petition before '.he expiry of three yeais can be granted•

What was the rationale for this rule? It is explained in a s.ries

of cases quoted in /<.B vs C-L. 1955 28 KLR 210. The first case quoted

:.s Fisher vs Fisher P.26> C.A* at page 214. In this case a husband had

leave refused to present a petition for divorce and appealed# BUCKNILL

L.J. said:-

•’The provision that the petition shall not be

presented until three years have passed was enacted
not only to deter persons from rushing into ill
advised marriages, but also to prevent them from
rushing out of ill advised marriages was *.ot what
they expected....Section 1, however, goes on,
by way of proviso to the section, to allow a
petition to be presented within three years on
the ground that the case is one of exceptional
depravity, and that, when he had come to conclusion
on that, he had to exercise his discretion and
decide whether the case was one in which he should
give leave#.... The difficulty in my mind, is
to say whether the evidence clearly establishes that
there was exceptional hardship or exceptional
depravity.
. It was argued -that, as there was no hope of
reconciliation, this was exceptionally hard on
the husband. It appears to me that in nearly
every case where the wife, or the husband,
shortly after the marriage decides that they
have made a mistake and intimates chat he or
 9
she does not intend to go on with the marriage.
If the court were to treat that as exceptional
hardship, it would be very difficult to know
where to draw the line. The fact that the wife
subsquently started to commit adultery with
another man is also no doubt, hard on the
husband, but, again, I cannot see that it is a
case of exceptional hardship. In every case
where one of the parties commits adultery it
is * and on the innocent spouse. j' can see
nothing in this case which makes me feci that
the wife is exceptionally depraved or v;h«ch
impedes exceptional hardship on the husband
It w-s then argued t! at the conduct cf rhe wife
had a- bad-effect' on the husband’s health and
was detrimental co his career in the army.
I feel that it ought to be very clearly
established 'that the facts do have a very
serious effect on the health of the Petitioner
before one can say that the case is one in
which the proviso to Section 1, sub-se'etion (1)
■ ought to operate v

Reference was also made to the case of Charlesby vs Charlesby (194?) 1?6

LT.R# 552, Tucker L-J. said:-

I! . ....Put quite shortly, the facts were these:,
She was a Greek lady; she had been serving in
Greece and she married the respondent there on
9th August 194-5*. Prior to her marriage, she had
suffered considerable hardship at the hands of the
Germans occupying the country, and at the time of
her marriage she was in bad state of health as a
result of what she had suffered and that the state
of health was known to the respondent, Shortly
after the marriage in Greece they came to this
country. The petition alleges that the respondent
is a man of depraved sexual habit and that he has ’
since the marriage, treated the respondent
with great cruelty and sexual perversion
assaulted her? The petition goes on to allege
specific acts cf cruelty and of sexual perversion.• •
which I need not to go into further, of sexual
act-: of depravity in which ho compelled the
 10

petitioner to take part- Then there is a final

allegation of what I may call an ordinarily
physical act of cruelty, namely, taking her by
the throat and endevouring to strangle her. Then
it is alleged that, having come to this country,
the respondent broke up the matrimonial home and
that she is now a stranger in a foreign land and
has nowhere to go. The respondent denies the
allegations.”

’’This was, in outline, the material upon which the

learned Judge was asked to exercise his discretion
and allow presentation of a petition within three
years.

;B>t, having established what may be a ce.se of excep­

tional hardship or depravity, it does not
follow that the learned Judge is bound in every
case to exercise his discretion and give leave
to present a petition. He cannot exorcise his
discretion unless such a case is imide cut; but
even if a prima facie case of that nature is
established it still remains for the learned
Judge to say whether, in the particular circums­
tances of the case with which he is dealing, he
considers it one in which he should exercise his
discretion.”

Leave in that case was denied in the court of first instance and on

appeal.

Turning to the Kenyan case of A.B vrs C.D. 1955 28 KLR 210 the facts

were that the parties married on 13th December 1952, in Kenya, and there

were no issues of the Union. The applicant deposed that from 14th to

21st December 1952, the respondent insisted upon having marital inter­

course with her on an average of four times during 24 hours despite the

fact that the applicant informed the respondent that this caused her

severe pain in the back and that when she suggested intercourse should

take place once only in the same period the respondent became extremely

angryo iron the 21st to 27th December 1952. intercourse could not take

pla'e because of menstruation. From 27th December 1952 to about 8 th

 11

January 195>i the respondent again insisted on having ’’very frequent

intercourse” although informed by his wife that it caused her severe

pain and wheTl so informed became abusive. Moreover, he kept the

applicant awake pleading with her to have intercourse and as a result

the applicant from pain and lack of sleep became unwell« On 8 th January

1953, the applicant* mf Drmed the respondent that she was in severe pain

and c<e?d ■\ct bear any more, but inspite of that he forced her to have

intercourse with him although she resisted. From that day until 18th

January the respond.ut insisted upon having inercourao with the applicant

inspite of the severe pa:;. and frequent complaint?.♦ Ou the l8lh January

the applicant saw a Doc cor and was admitted to a womens hospital on 22na

January 1955. From he nJ-* the applicant stopped cohabitation with the

respondent and could not live with the respondent who for his own

gratification, inflicted pain on her which she was advised would lead;

to a mental breakdown. She was subsquently operated upon and cyst

removed from her left ovary with the probable result that she would no

longer suffer any pain in the act of sexual intercourse* She neverthe-

lews atnted that the conduct of the respondent made it impossible to

resnme married life Cram Ag. J., stated:-

"It seems plain that the breakdown of this marriage

was chiefly due to the physical maladjustment of the
applicant who has later failed to make e. reasonable
attempt at reconciliation. The applicant does not
say that she has consulted her relatives, a clergyman,
a probation officer or any other person specially
qualified to help. She has not once attempted the
sexual act with her husband to see if her original
feacr and repugnance, which is understandable, but
not her post-operational refusal which seems to me
phyechological, would be overcome. She has not tested ’
him to see if he has become more understanding
and gentle. I am not satisfied at all that she has
done all that is reasonable to discover if
reconciliation is possible.”

The a;plicatior for .eave tc filo a divorce before the exyiry of

t..e three years was refused

c.<-,/12
 ■\d-

From the above cases' itf* appears to me that the three year rule

operates very harshly in so far as the exception to it which requires

proof of exceptional hardship on the part of the applicant and excep-

tional depravity of the respondent imposes too harsh a burden on the

lives of the spouse who is no longer able and willing to continue the

union with the other spous^€ Mairiage like all other parternship

contracts is built on mutual trust and confidence. Each partner must

• • • .
be able to trust and have confidence in the other in the pursuit of the

..partnership objects> In ordinal-y contracts r.nce this is broken the

partnership cannot hold together. It is dissolvod..

A
However, marriage contracts are not so similarly regarded.

Marriage gives rise to a family unit upon which it i.s believed

community and subsquently the nation or State is built. It is in the

nation’s interest to protect the family unit. Initially in England '

ho dissolution of a matrimonial union was allowed. Later the legislature

could grant a divorce but not the courts. Subsquently divorce was

allowed and could be granted by courts but on very stringent grounds.

In the process the three year rule was developed to

«> deter not only persons from rushing into ill
advised marriages, but also to prevent them from
rushing out of marriage as soon as they discover
that their marriage was not what they expected

I do not see the need why persons who contract ill advised marriages

should be dettered from dissolving, such unions should they find that

mutual faith, trust and confidence has dissolved or disappeared. Marriage

should be a union of.two consenting' adults to pursue marital happiness

and other attendant objectives. The three year rule has been abandoned

in the United Kingdom, if I am to.believe counsel for the respondent,

under the Matrimonial and Family proceedings Act, 1984. I imagine this

was due to the fact that it was realised unions could not be held together
A
>5' Law if they have fallen apart infact.
 Matrimonial Causes Act 1950 is applicable to Uganda subject to

what the circumstances of the people of Uganda may permit*

The circumstances of the people of Uganda ,• in my view, dapnand that

once a union has irretriably broken down the parties should, subject

bo making provision for the issue of such a union, be allowed, an

opportunity to pursue their lives without being tied to a union that

has broken down. Three years may be a short time but it is also a long

time in Uganda during which no exceptional hardship or perhaps any

hardship at all should be inflicted or suffered ty a party merely to

hold a union together. This could easily amount to cruel and or

degrading treatment or punishment. The facts of the case of A-B. vrs

C.D. (supra) are illustrative of this.

To hold as was held in the case of Fisher vrs Fisher (supra) that

the adultery of a party to a union imposes no exceptional hardship on

the other party cannot be permitted by the circumstances of the people

cf Uganda. The future and .health, of our nation now depends on

’’zero grazing” in light of the Aids epidemic in this country.

Where it is a pparent in any union that the parties are no longer able

to pursue their joint enterprise by the conduct of one or both the

parties and such conduct gives rise to one of the grounds for divorce

contained in Section 5 of the Divorce Act, then, such party, -or any

one of them, should be able to bring an action for divorce without

being tied to the three year rule. The rule has been abandoned in its
country of origin. And the circumstances of our people do not permit
its application here.

I would therefore dismiss this appeal with costs and would remit

this cause back to the trial court for the hearing of the divorce cause

to pioceed.

f
• •• :

F.M.S. EGONDA NTENDE

JUD G E
20/12/1993
 Vi

2t/12/1993 9:15 a.m.

Present

Mr. Asa Mugenyi for Appellant

Mr. Komakech Court Clerk

Absent

Irumba R Appellant

Irumba F Respondent

Katuntu for the respondent.

Judgment d 1'iver^j.

./.....A-. ■ > .

F.M.S, EGONDA NTENDE

J U D G E
20/12/1993