Mazumbe v. Wekwe (PC) Civ. App. 186-M-70; 2/10/71; Jonathan Ag. J.

Mazumbe v. Wekwe (PC) Civ. App. 186-M-70; 2/10/71; Jonathan Ag. J.

The appellant instituted proceedings in the primary court for the return of dowry paid by his deceased a brother when he married the respondent’s daughter. The facts as found by the primary court were as follows:- The appellant’s deceased brother married the respondent’s daughter in 1956 and paid a dowry of 16 head of cattle and 10 goats. They lived together for only about 5 months; then she deserted him. There was no divorce proceedings filed by the deceased, apparently because his wife could not be found so that at the time of his death the marriage, though broken down, was still subsisting on the basis of the wife being the guilty party. The primary court unanimously gave judgment for the appellant, ordering the respondent to refund him 7 cows, 6 heifers, 2 oxen, one bull and 10 goats, the respondent successfully appealed to the district court. The district magistrate applied Para 62 of the First Schedule to the Local Customary Law (Declaration) Order, 1963 which was, by G. N. 604/63, made applicable to North Mara District, where the suit originated. The Para provides, inter alia, that, if a widow chooses to return to her parents, the dowry is not returnable. The Court had regard to paragraph 101(c) of the same schedule which provides that, “a wife is considered married until she receives a divorce certificate.” It held that as the respondent’s daughter had not received a divorce certificate, so she was still

the deceased’s wife at the time of his death, and she could choose, as she did, to return to her parents, in which case the dowry was not returnable.

            Held: “(1) [R]ules had been declared respecting the matter as in the Local Customary Law (Declaration) Order which had to be followed. They could not have been displaced by opinions of the assessors as to the rules applicable to the matter. I am satisfied, therefore, that the district court was right in invoking the provisions of the order.” (2) “The district magistrate did also question, rightly in my view, the locus standi of the appellant in filing the suit. The deceased left 5 children who, according to the written rules of inheritance, were entitled to inherit his property, including, I suppose, choses in action. However, the appellant did state in evidence that before he died, the deceased left an oral will that on finding the respondent’s daughter; the appellant could claim return of the dowry. If that was so, he should have called the witnesses to the will as is required by paragraph 11 of the Third schedule to the Local customary Law (Declaration) (No. 4) Order. 1963.” (3) Appeal dismissed.