Marwa v. Marwa (PC) Civ. App. 169-M-70; 12/10/71; Jonathan J.

Marwa v. Marwa (PC) Civ. App. 169-M-70; 12/10/71; Jonathan J.

The appellant was ordered to refund to the respondent bride wealth comprising 46 head of cattle following the successful divorce proceedings taken by the respondent against the appellant’s sister. The High Court found that although the marriage was dissolved on the petition of the respondent the curt had made no dinging of guilt in the divorce proceedings but in the present action both lower courts assumed that as the respondent had obtained the divorce his wife was there fore the guilty party. The court observed that there was no evidence to support the finding that the appellant was the guilty party.

Held: (1) “It seems tome that if the trial court had properly considered the evidence it would have found it impossible to say which was the guilty party, or if hey were both at fault, as may very well have been the case, toe apportion guilt. I would, therefore, determine this appeal on the basis that no guilt was established as against either the respondent or his wife.” (2) “By G. N. 604/63, the Law of Persons (G. N. 279/63) was made applicable to the North Mara District Council. Section 52 of the first schedule to G. N. 279/63 provided that, where grounds of divorce are not established, the there are children of the marriage, no dowry if refundable. In the present case

            as I have observed, it is not clear as to which of the parties was responsible or mainly responsible for the break-down of the marriage, while it is clear there are two children of the union. On the face of it, therefore, no cattle are refundable. However, having regarded to section 38, the court still had discretion whether or not the refuse entirely return of the dowry paid. The marriage had lasted 4 or 5 years only and it would appear that she stands a chance of a getting married again if that has not happened. In the circumstances of the case, I would consider it fair and just to order return of a small part of the bridewealth. Accordingly, I order that only 10 head of cattle should be returned.” (3) Appeal allowed.