Andengelile Mwambebule v. Ngatele Mwijala, (PC) Civ. App. 51-DDM-72 26/7/72.

 

Andengelile Mwambebule v. Ngatele Mwijala, (PC) Civ. App. 51-DDM-72 26/7/72.

            KWIKIMA, AG. J. This is an appeal by Andengelile the husband of Tulimwalo from whose brother Ngatele he sought to recover 6 cows, a bull, and Shs. 70/= being the brideprice he paid when he married Tulimwalo in 1947……. In an earlier case, Katumba Civil Case No. 202/71, Andengelile was sued by his wife [Tulimwalo] who had deserted him. The Court dissolved the marriage, holding Tulimwalo responsible for the break up. It was established in the same case, i.e. No. 202/71 that the marriage had endured for 24 years without there being any issue at all. Tulimwalo was found guilty of deserting her husband. Andengelile thereby commenced this suit against his brother-in-law who is customarily the person to refund the bridewealth.

            The Katumba Primary Court allowed Andengelile’s claim to the extent of three cows, on bull and Shs. 70/= only, although the claim was for the return of the full brideprice of 6 cows, a bull and Shs. 70/=. Both the parties appealed.

whereupon the Tukuyu District Magistrate awarded Andengelile three cows and Shs. 110/= only being what the learned magistrate considered to be half the brideprice originally paid. Rules 52A, 54 and 55 of the Declaration of Customary Law G.N. 279/63 were cited as authority for this decision.

            These rules empower the court to exercise its discretion as to what should be refunded in the case of a long-subsisting marriage. On the other hand, rule 68 makes it crystal clear that if the wife is the party responsible for the break up then the full bride-price is refundable and the grant of the divorce is conditional upon the completion of the refund. Rule 61 goes further to make the guilty party liable for the costs of the suit. In view of this, a court of law and especially on appeal court should take pains to evaluate the circumstances and relate them to the law before deciding to exercise its discretion.

            In this dispute, the fault for the break-up of the marriage was entirely Tulimwalo’s who went as far as instituting a suit for the dissolution of her marriage to Andengelile. Her husband was still eager to take her back but she would not agree. She deserted him, refused to return to him and brought a suit to divorce him. In his memorandum, her brother argues that she is now too old to remarry. So her husband should not be entitled to a full refund of the brideprice he paid when he married her some 24 years ago.

            Poor prospects to re-marry and old age have been held to be enough reason to reduce the brideprice refundable even if the wife be the guilty party in Manyoni Witare v. Palapala Kakoro (1967) H.C.D. n. 86. But Seaton, J., was emphatic that a recalcitrant wife cannot hope for a reduction just because the marriage endured for long. The learned judge denied the wife any relief in Nyakasara Kimiro v. Marwa Mwita (1968) H.C.D. n. 6 where the marriage had endured for 14 years. There is therefore considerable weight in Andengelile’s argument that he should receive the full price from his brother-in-law. Ngatele should not expect relief if his sister, old and unlikely to remarry though she may be, chooses to jilt the man who has loved her and got used to her company for so long. The jilted husband should at least be given back his cattle so that he could look elsewhere for company. In the circumstances of this case, it would be like adding insult to injury if the husband, after being put to grief and embarrassment by his wife, was again denied his full brideprice. Indeed the divorce ought not to have been granted to Tulimwalo before her brother had paid back all the cattle and money.

            It would be unfair for the court to use its discretion to put Andengelile to further disadvantage when all the fault is his wife’s. She is free to return to the man who still loves her and has been caring for her for 24 years. The question of her chances to re-marry should not arise because her husband still wanted her when she sought to divorce him. If she had any marital ambitions, she should not have so wantonly broken up her marriage in the first place.

            Looked at this way, Andengelile’s case becomes the more forceful of the two. In the event therefore, his appeal is allowed with an order that Ngatele should pay him six (6) cows, one bull and Shs. 70/= plus costs throughout this case. If he cannot obtain the beasts then Ngatele should be made to pay their equivalent in money. At the same time Ngatele’s appeal is dismissed.