Anna Samson v. Richard Odera Aduda (PC) Civ. App. 11-DSM_72, 4/8/72, Mfalila, Ag. J.

 Anna Samson v. Richard Odera Aduda (PC) Civ. App. 11-DSM_72, 4/8/72, Mfalila, Ag. J.

The appellant filed an action against her husband the respondent claiming the child Poba who allegedly had been taken away from her by the respondent. The parties were married by civil marriage on 21^st May, 1971 but the child Poba was born on 1/9/70. The problems between them started when the respondent who is a Kenya national decided to return

To Kenya with the appellant who is a Tanzanian national. The appellant declared her unwillingness to go to Kenya saying it was a condition of their marriage that should the respondent wish to return to his native country, the appellant would remain in Tanzania. The appellant also insisted that the child Poba should remain with her because she is not the respondent’s child as she was made pregnant by another man, on Dickson, before she met the respondent. The appellant obtained judgment in the Primary Court declaring that the respondent was not Poba’s father and that therefore the child Poba should be and remain with her mother. The respondent successfully appealed to the Distinct Court  at Ilala where the court held in his but in view of the child’s Poba was his but in view of the child’s tender age, it was ordered that it should remain in its mother’ custody. The appellant now appeals.

            Held: (1) “This was a case concerning child of the marriage between these parties and the birth of this child had been registered in accordance with the law, the court was therefore, simply called upon to declare the status of this child in law, and its custody since its parents were living separately. This then was a Matrimonial proceeding pure and simple under s. 81(a) and s. 77(4) of the Law of Marriage Act 1971. This then automatically affects the appeal in the District Court …… S.80 of the Marriage Act, 1971, modified the tier of appeals provided under the Magistrate’s Courts Act in that under the Marriage Act there is a right of appeal directly to the High Court from all the Magistrates’ courts. District courts have no jurisdiction in Matrimonial proceedings to hear appeals from Primary Courts. The proceedings before the District court were therefore a nullity.’ (2) “As to the paternity of the child the birth certificate speaks for itself. It is recorded thereon that Poba was born on 1/9/70 and that her father is one Richard Odera Aduda. The birth certificate, then she can only do so by swearing an affidavit to that effect stating therein why she had earlier given false information. She will certainly be prosecuted if she does so, but she may think it worth her while if she is convinced that Poba is not the respondent’s child. But in the meantime all the evidence points to the fact that the respondent Abuda is Poda’s father and this fellow Dickson does not feature anywhere. I would therefore find and declare Richard Odera Adudd father of the child Poba.” (3) “I will next consider the question of who will have the custody of this child, the appellant mother or the respondent father. It is agreed that the parties are no longer living together. I have also considered the circumstances of each of them and their respective abilities to look after the child. The mother is unemployed, in fact the may be working as a casual barmaid in various bars and beer stores. Her mother with whom she is staying is in the same position. On the other hand the father has good job, he has a stead home, his first wife who has no children of her own assured this court that she is able and willing to look after Poba like her own child. In these circumstances I think that the presumption under s. 125 (3) that it is for the good of the infant below the age of seven to be with his or her mother has been sufficiently rebutted. The atmosphere at the father’s home is more conducive to the proper mental, physical and moral development of the child Poba than that prevailing at the mother’s home. Poba is now almost two years old. Considering the mother’s selfish attitude it is proper that the child Poba revert to the father’s custody without delay. The respondent will therefore have custody of the child with liberty to the mother to visit her as often as she wishes.”