Charles Oomoso v. Francis Macnde (PC) Civ. App. 280-M-69; 26/1/70; Seaton J.

 

Charles Oomoso v. Francis Macnde (PC) Civ. App. 280-M-69; 26/1/70; Seaton J.

The appellant claimed refund of the dowry alleged to have been paid for the respondent’s sister, Eslida, who had sought and been granted a divorce in civil case No. 8 of 1969. The lower courts found that the dowry was paid by the deceased Ogutu’s mother for Ogutu’s marriage to Eslida and that though the appellant had given some money towards Eslida’s hospital treatment it was because she was his concubine after Ogutu’s death in 1966. It was the assessors’ view that it would be contrary to Luo custom and absurd for the appellant to have married Eslida independently after the death of Ogutu if he was related to the latter, although he could have inherited her. The lower courts also found that the so-called divorce granted to Eslida in Civil case No. 8 of 1969 was a mistake and that she should have been granted a widow’s certificate under clauses 62 and 63 of the Law of Persons (G.N. 279 of 1963).

            Held: (1) There was ample evidence to support the lower courts finding of facts. (2) “As to the law applicable, it is that set out in the Law of Persons, which was made binding on persons within the jurisdiction of North Mara District Council by G. N. 604 of 1963. however where the parties are all of the Luo tribe, as in the present case, Luo of Persons as declared in G. N. 279 of 1963.” (3) “The rights of widows are dealt with in clauses 62 to 70 of the Law of Persons. According to clause 64, if the widow agrees to live as wife with one of he deceased husband’s relatives and consent to this has been obtained from the family Council, she becomes the legal wife of this relative. Further, according to clause 65, the bridewealth paid by the deceased husband is then considered as if paid by her new husband. I pause here to observe that had Eslida chosen to live with the appellant after Ogutu’s death as his legal wife, it would be immaterial whether the dowry had been paid by the appellant or by the deceased Ogutu’s mother.” (4) “It seems to me that the Law of Persons does not provide for repayment of dowry in case of the death of a husband. What appears to be contemplated is that the dowry remains with the family of the wife (now widow) and, if the family council agrees, she becomes the wife of any of her husband’s relatives of whom she may agree to become the wife. Nor is dowry repayable in every case of divorce under the Law of Persons. It is only repayable when the court finds that one of the parties has been guilty of conduct causing the break-up of the marriage. Even then repayment of dowry is not automatic; it is within the discretion of the curt according to clause 38 of the Law of Person. Among other considerations, the court is entitled to have regard to length of the marriage and number of offspring of the marriage.” (5) “I am of the view tat the views of the assessors in the present case as to the Luo customary law happily coincide with the Law of Persons and there has been no misdirection by the District Magistrate. The appeal is accordingly dismissed.”