Fredi s/o Nyamu v. Josephina d/o Gabriel (PC) Civ. App. 133-M-69 26/1/70; Kimicha J.

Fredi s/o Nyamu v. Josephina d/o Gabriel (PC) Civ. App. 133-M-69 26/1/70; Kimicha J.

The parties to the appeal were married but due to matrimonial misunderstandings were separated and then divorced. At the time of the separation the appellant believed that respondent was three months pregnant and when she did not produce the child at the time it should have been born, he sued her for the production thereof. The respondent denied she was pregnant when they were separated. The district court dismissed the suit on the ground that the existence of the child could not be proved. Appellant later traced the child and filed another case for custody. The primary court was satisfied that the child produced before it was conceived while the marriage of the parties was still valid and granted custody. The District Court upset the judgment on the ground of res judicata. The High Court restored the judgment of the Primary Court.

            Held: (1) “I am of the view that the district magistrate misdirected himself in holding that the doctrine of res judicata applied – because it was part of the judgment in Shirati Civil Case No. 64/67 that Fredi should institute fresh proceedings on finding the child”. (2) Appeal allowed.