Bilingimbana v. Mwijage (PC) Civ. App. 209-M-70; 6/7/71; El-Kindy Ag. J.

 

 Bilingimbana v. Mwijage (PC) Civ. App. 209-M-70; 6/7/71; El-Kindy Ag. J.

            The appellant/wife had sued for divorce under customary law alleging that the respondent/husband had caused her great hardship by not providing her with matrimonial facilities and by sending her away from the matrimonial home. She also made a number of other vague allegations. The two assessors in the primary court found that the evidence of the appellant had failed to establish a ground for divorce. But the trial magistrate disagreed and found that it was the respondent who had caused the disagreement and granted divorce under Rule 61 of the Law of Persons, G. N. 279/63. The district court reversed.

                        Held: (1) “As it was rightly pointed out by the learned appellate magistrate, the trial magistrate’s opinion was in minority, and as such he could not override the opinion of assessors in view of the amendement to the Magistrates Courts act, 1963, Cap. 537 imposed by section 2 of the Magistrates Courts (Amendment) act, 1969, Act No. 18 of 1969. In view of this vote system of making decision, the trial court was bound to give judgment as advised by the two assessors. The appellate court agreed with the views of the assessors in the trial court, and the assessor on appeal also was of the same opinion, and held that the appellant failed to establish a sufficient ground for divorce, and allowed the respondent’s appeal in full.” (2) “In her memorandum of appeal, she argued that the fact that for the last 3 years the respondent has not cared for her was a sufficient ground for divorce. This allegation, in my view, is not accurate as there was a conflict of evidence as to whether the respondent refused to take her back or whether the appellant refused to go back with him. Indeed from a clear declaration made by her that she had no intention whatsoever of going back to her matrimonial house, it cannot be said hat the appellant could not possibly e the one who chose to stay away from her matrimonial home. If so, she cannot legitimately complain that the respondent was guilty of desertion.” (3) Appeal dismissed.