Birigi v. Wajamu (PC) Civ. App. 210-M-70; 23/6/71; El-Kindy Ag. J.

Birigi v. Wajamu (PC) Civ. App. 210-M-70; 23/6/71; El-Kindy Ag. J.

The appellant lived in concubinage with the respondent and some five children were born out of the wedlock. He claimed the children. The respondent denied that the appellant was the father of her children except one. At the trial the appellant could not adduce clear evidence as to how long he had cohabited with the respondent. The trial court found that the appellant had not established his claim over the children and therefore they belonged to the maternal side. The district court held that it had been established that at least one child belonged to appellant but that the appellant could not have custody of that child unless he legitimized it and it reached the age of six years. On appeal, the appellant argued that he had established his paternity of the children and that he saw no reason why he should legitimise his own child by paying a fee.

Held: (1) “I am satisfied that the primary court erred when it held that he appellant was not entitled to the children on the ground that children born out of wedlock “Belonged” to the maternal side. This seems to be a misapplication of Rule 178 of the Local Customary law (Declaration) Order G. N. 279 of 1963 which, in my view, only applies in cases where the father was unknown, but where the father was known then Rules 181 and 182 of G. N. 279/63 in certain circumstances. The two rules read as follows: - “B. IF THE IDENTITY OF THE FATHER IS KNOWN. LEGITIMATION 181. A. A. father has the right to legitimate his illegitimate children at any time by marrying their mother. B. If a man wishes to legitimate his child is weaned by paying Shs. 100/- to the girl’s father. C. The place where the child is brought up shall be agreed by its father and mother, or if they cannot agree it will be fixed by order of the court. In any case, the father shall be responsible for the maintenance of the child. 182. Only the man who has been named as father by the mother at the time of the child’s

birth has the right to legitimate it.” These provisions where considered in the cases of MTAKI v. MIRAMBO 1970 H. C. D. No. 188, SAIDI v. MSAMILA 1970 H. C. D. No. 228, KINYAZI v. BANDAWE 1970 H. C. D. No. 311 and TEOFRIDAN v. KANISIUS 1971 H. C. D. No. 21.   (2) “It seems to me to be clear that provisions of sections 181 and 182 have no doubt at all. In the first place it is only the person who is named as a father, is entitled to legitimise his child born out of wedlock, and he can do so by using either of the two methods set down. He can do so by marrying the mother of the child, or he can legitimise the child by paying affixed amount of Shs. 100/-, and this he can do before the child is weaned. In other words, there is no provision in the Declaration whereby a named father can legitimate his child after the child is weaned. This omission in my view is serious as it unnecessarily denies the child born out of wedlock the right of being legitimate. I am unable to understand why the provisions chose to restrict the right to legitimation of the child by making it only available to the child who is still unweaned and denied it to the child who is already weaned.” (3) “In this case… the evidence showed that the appellant did not attempt to legitimatize Mwajuma before Mwajuma weaned, and therefore it was not open to the appellate court to permit the appellant to legitimise Mwajuma before Mwajuma weaned, and therefore it was not open to the appellate court to permit the appellant to legitimise Mwajuma.” (4) “However, the basis of the appellant’s claim was that as the natural father of the alleged three children he was entitled to take these children, but the evidence he led did not establish that Limbu and Mwamba were his children. The trial court and the appellate court were entitled to hold against the appellant on this issue.” (5) “The issue then was whether the appellant was entitled at all to the custody of Mwajuma, whether before or after weaning. As I have stated, Rule 178 of G. N. 279/63 was only applicable in cases where the child’s father is unknown. My reading of provisions of rules 175 to 199 of G. N. 279/63 did not help in resolving of this issue although the impression left is that custody of such a child remains with the material side. However, in this case Mwajuma is still a young girl, and it is not necessary for me to resolve the above issue. In my view, it is in the interest of Mwajuma that she should remain in the custody of the respondent as it was ordered by the appellate court, and that the appellant, if he is not doing so, should pay for the maintenance of “Mwajuma.” (6) Appeal dismissed.