Kisiri v. Mahende (PC) Civ. App. 58-M-70; 12/10/71; El-Kindy J.

 

Kisiri v. Mahende (PC) Civ. App. 58-M-70; 12/10/71; El-Kindy J.

The respondent married the daughter of the appellant in 1965. There was a daughter of the marriage. In 1967, because of incessant quarrels, the appellant’s daughter left the house of the respondent taking with her their daughter who was then 2 years old. The respondent then successfully sued for divorce. In an action against him, the appellant was ordered to refund 45 heads of cattle, bridewealth, which were paid to him by the respondent. As the latter did not know the whereabouts of his child he also sued the appellant for her restitution or the payment of 10 heads of cattle in lieu thereof. He was awarded the customary 10 heads of cattle. Both orders were upheld in the District magistrate court.

Held: (1) “The evidence showed that the appellant’s daughter left the house of the respondent, but the evidence is not clear as to who was guilty or partly guilty for the break up of the marriage. The issue then was inconclusive and in the circumstances it is only fair that the blame for the break up of the marriage should be apportioned evenly. Although the respondent was entitled to a divorce for desertion under paragraph 134 of the Customary Law Declaration (Law of Persons) G. N. 279/63, the assessment of returnable bridewealth is a matter of discretion of the court and the degree of guilt is one of the determinant factor (see paragraph 54 of G. N. 279/63). It appears that the trial court and the appellate court did not direct their minds on this point and it cannot, therefore, be said that hey exercised their discretion judicially.” (2) “In addition to that, their was a child of marriage and the respondent had been living with the appellant’s daughter for not less that two years. It cannot be just for the respondent to have lived with the appellant’s daughter for that period and to beget a child with her, and then recover the full brideprice upon divorce. It is to avoid this kind of injustice that paragraphs 53, 54 and 55 of the Customary Law Declaration (Law of Persons) G. N. 279/63 were enacted. It is also for a similar reason that this Court finds that the fact that there was a child of marriage is reason enough for not granting full restitution of bridewealth. In my view, I find that the order for a refund of all the bridewealth I unjustified. In the circumstances, the respondent should only get 22 heads of cattle. If the appellant had already paid back the 45 heads of cattle, the respondent should return

23 of them to the appellant.”  (3) “The second part of the appeal is difficult and has caused me great anxiety. The learned counsel argued that the custom was not only against natural justice but also repugnant. I am not ready to hold in that manner as what is involved is a delicate piece of customary law which is not necessarily bad. It is common knowledge that homicide was dealt with by payment of compensation to the parents of the victim. A similar thing seems to be involved in this case, as it is only payable where the party is unable to return the child. In this case the respondent sued for his daughter, but because the appellant appeared not to have known where his daughter and granddaughter were, he sued for 10 heads of cattle in the alternative. The gentlemen assessors had no doubt that the respondent was, in the circumstances, entitled to the 10 heads of cattle and the trial court awarded it. I cannot say that their decision was wrong on the facts as they were before them. As I have said the respondent now knows where his ex-wife and daughter are and I see no reason why he should not sue her instead of suing a person who not only did not have the custody of the child but did not even know where the child and its mother were”. (4) “In the circumstances I do not have to consider whether upon payment of the customary law compensation the father would lose all his paternal rights over he child. Mr. Matemba felt strongly about this and was of the view that the respondent, as a natural father, should not be deprived of his rights over the daughter. I express no opinion on this. The assessors themselves expressed no opinion on this. I find, therefore, although the customary law of Simbiti allowed such payment of compensation, for the reasons stated, this claim cannot be upheld now. The respondent can sue his ex-wife or whoever had custody of his dear daughter, and the primary court would determine this issue in the best interest and welfare of the child.”