A civil suit is proceeding in a District Court. In the course of trial, the court forms doubt on the validity of a customary practice cited by one party as having legal force. Can the court seek guidance on the matter, and if so, how?

A civil suit is proceeding in a District Court. In the course of trial, the court forms doubt on the validity of a customary practice cited by one party as having legal force. Can the court seek guidance on the matter, and if so, how?

Answer: Yes, the District Court may refer the question to the High Court under Section 77 and Order XLI Rule 1 of the Civil Procedure Code, Cap. 33 R.E. 2023. These provisions permit a court to refer a question concerning the validity or existence of any custom or usage having the force of law, where the court has doubt and such determination is necessary for disposal of the case. The court must clearly state the factual background, formulate the specific legal question regarding the custom, express its doubt, and send the record to the High Court. The proceedings are stayed pending the High Court’s ruling, which once delivered, must be adopted and applied in resolving the case. This ensures consistency in the application of customary law and prevents judicial speculation. As counsel, you can move the court to consider this route if the resolution of the suit hinges upon uncertain customary principles.

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