Julius v. Denis (PC) Civ. App. 199-M-70; 9/7/71; El-Kindy Ag. J.

Julius v. Denis (PC) Civ. App. 199-M-70; 9/7/71; El-Kindy Ag. J.

            This is an appeal against judgment of the district court ordering the appellant to pay Shs. 500/- to respondent as compensation for making the appellant’s daughter pregnant. The appellant was the girl’s teacher. The girt alleged that he seduced her and had sexual intercourse with her on various occasions at his home. She also described the various parts of the appellant’s body such as the fact that he was uncircumcised and had “hairs on his penis”, and has “a small but protruding naval.” There was also some evidence of admission or responsibility for the pregnancy by the appellant. The trial court on the evidence found for the respondent and the district court affirmed holding that the appellant had not discharged the burden of proof as laid down in Rule 183 of the Law of Persons G. N. 279/63. On appeal it was argued for the appellant, that as he had denied responsibility, it was up to the respondent to satisfy the trial court in terms of Rule 186 of the Law of Persons G. N. 279/63 and that this burden had not been discharged by the mere description of characteristics common to any male adult.

                        Held: (1) “In order to resolve the issues rose, I would firstly quote the two relevant sections in full. Rule 183 of the said rules read: “183. The man whom the woman names as the father of her child may not deny paternity unless he can prove that he had no sexual intercourse with the woman.” And 186 reads: - ‘186: If a man named insists that he has never had sexual intercourse with the woman and

            Produces evidence, the woman shall be required to prove the assertion by giving details regarding place, time physical characteristics of the man and by calling witnesses to her relationship with the man in question.” As it can be seen the effect of these two sections is to shift the burden of proof on to the man in such cases. These two sections are applicable in this case as the two parties (appellant and Modest) were not married, and the child who was born and brought in court on appeal, was an illegitimate one. In my view the proper interpretation of these sections would be this. Where a man denied paternity, it would not be enough merely to deny it. He has to lead evidence, as it can be seen from the wording of both sections (“prove” in Rule 183 and “produces evidence” in Rule 186). The burden of proof does not shift back to the woman, as provided for by the latter part of Rule 186, until the appellant has discharged his duty as provided for in the first part of Rules 186 and 183. A similar point was considered in the case of NYAMGUNDA v. KIHWILI [1967] E. A. p. 212. As it can be seen, in this case, apart from the appellant’s simple denial, he did not lead any evidence to exonerate himself, as it were, of Medesta’s allegation. In my view, therefore, the burden of proof had not yet shifted back to Modesta or the respondent so as to justify the learned counsel’s criticisms that she or the respondent had not complied with the provisions of Rule 186. As the appellant did not lead any evidence in rebuttal of the allegation, the respondent’s case was bound to succeed.” (2) “However there was evidence which, if accepted, would sufficiently support the respondent’s case. Modesta gave time and place of the incidents, ad as to the relationship and physical characteristics of the appellant. As the burden of proof had not yet been shifted on to her, her evidence, given on oath as it did, was adequate. It did not need corroboration in the circumstances of this case. In the case of NYAMGUNDA v. KIHWILI [1967] E. A. p. 212, in a similar case to this one, this Court held that corroboration was not required. Besides this, there was clear evidence of Alex Mahenya which showed that the appellant was the one who fathered the child by Modesta.” (3) Award of 500/- was rather low, people of the appellant’s nature should not get away lightly. (4) Appeal dismissed.