Benjamin Kisoleka v. Bi. Elizabeth Josephat Civ. App. 168-M-69; 27/1/70; Brambe J.

Benjamin Kisoleka v. Bi. Elizabeth Josephat Civ. App. 168-M-69; 27/1/70; Brambe J.

The appellant and respondent were married under customary law on January 1968 and in July 1968 the respondent gave birth to a child. There being objection to the marriage from the appellant’s religious advisers, the respondent returned to her father’s where she gave birth before the return of the bride-price. The respondent did not deny the appellant’s allegation that he used to have sexual intercourse with her before the marriage but she said that she was impregnated by another man and was with child through him when she got married.

            Held: (1) “According to section 175 of the Law of Persons, G. N. No. 279/68 a child born in wedlock belongs to the father. On this the trial magistrate decided in favour of the appellant. While there was no specific finding on who it was that was responsible for the respondent’s pregnancy the balance of the evidence would support the appellant’s claim on the point as it would be most unlikely for him to marry the respondent knowing she was pregnant through another man and pay a bride-price of 23 head of cattle and Shs. 3,000/-. This, however, is not very material since the law is that a child born in wedlock is the husband’s child. There was no doubt that at the time of birth the marriage had not been dissolved. Neither of the lower courts made any finding of fact as to whether or not it was the appellant who was responsible for the respondent’s pregnancy. The latter did not refute the statement that they used to have sexual intercourse before marriage and on the balance of probabilities I find that the appellant was responsible.” (2) “The learned magistrate in the District Court misdirected himself on the law when he sought to invoke sections 183 and 184 of the Law of Persons since they deal only with illegitimate children of unmarried women. In all the circumstances the child in question was legitimate. I must allow the appeal and restore the judgment of the primary court.” (3) “A further question arises and that is the question of custody of the child. Because of its tender age I am of the view that it should remain in the respondent’s custody. She claims that she is working and full able to support it while the appellant says that he has a number of children at home. He is a teacher. I will therefore order that custody of the child should remain in the respondent until it is five years old when the appellant will be at liberty to apply to the Court for custody. In the meantime the appellant will pay Shs. 30/- monthly for its maintenance.” (4) Appeal allowed.