Mwalifunga v. Mwankinga (PC) Civ. App. 118-D-70; 23/2/71; Biron J.

Mwalifunga v. Mwankinga (PC) Civ. App. 118-D-70; 23/2/71; Biron J.

The respondent obtained a divorce from the appellant’s daughter on the grounds of her desertion. The primary court awarded him back four of the six head of cattle he had paid as dowry. The primary court took into account the fact that the daughter was at fault in deserting the respondent and that the parties had lived together for nine years and had one child which died. [Applying Para. 54 of the Law of

Person (Government Notice 279/ 1963).] On appeal, the District Court ordered that all the six head of cattle be refunded. They so ordered because: (a) the appellant was aware of his daughter’s bad behaviour towards her husband at it was he who had represented her in divorce proceeding; (b) “the women of this country have a habit of enriching their fathers by leaving their former husbands to the marriage of another in order that when the question of a return of the bridewealth paid by the former husband who has been deserted comes into consideration, part of it is given to the father of the girl after he has received another bridewealth from the new husband,” which habit should be discouraged; (c) the appellant had received new bridewealth from another man in respect of the deserting daughter.

            Held: (1) “The Primary Court made a generalization as to the practice of women leaving their husbands in order to obtain additional bride-wealth or bride-price for their parents, which practice, the court said, should be discouraged. The District Court however, has narrowed down this generalisation to the particular, that the appellant’s daughter has re-married and he had received another bride-price for her. As remarked, there is not a shred of evidence to support such findings.” (2) “The Primary Court based its finding o the facts as adduced in evidence, and very properly directed itself on the law. The District Court therefore was neither right nor justified in interfering with the judgment and order of the Primary Court on the grounds of pure speculation unsupported by any evidence.” (3) Appeal allowed.