Makende s/o Kisunte, (PC) Civ. App. 159-D-67, 6/1/69, Saidi J.

Makende s/o Kisunte, (PC) Civ. App. 159-D-67, 6/1/69, Saidi J.

            The respondent was married to the appellant many years ago in North Mara with a dowry of 38 head of cattle. They had four children. The respondent then deserted the appellant and went to live with another man, by whom she subsequently had four children. While a fifth child was in the womb, the marriage between her and the appellant was dissolved. The appellant claims custody of the children born of the other man and the return of the dowry.

            Held: (1) The lower courts were correct in holding that the claim for dowry was not maintainable against the wife. A dowry is normally paid not to the wife, but to her parents or their heirs and it is against them that the husband should proceed.

                        (2) The appellant is presumed to be the father of the five children born after the desertion, as they were born, or conceived, before the marriage was dissolved. The presumption is made as a matter of public policy, undertaken to safeguard the sanctity of marriage.

                        (3) ‘As is well known and upheld by this court, the welfare of the children whose custody is disputed is the first matter to be taken into consideration”.

                        (4) Where the children have been born in another house and brought up in that house by the mother and another man, and may not have known anything about their legal father and where there is no complaint that they have not been property looked after, the best thing is to leave them with their mother. “To move them from the home to which they have been accustomed to another home to which they are not accustomed, during their most impressionable years, would be very upsetting and might result in serious psychological consequences”.

                        (5) (Obiter) Their legal father “owes a duty to lock after their maintenance, and he is entitled to arrange their marriages when they grow up and to receive dowry paid in respect of the marriage of any of the daughters”.

                        (6) Appeal dismissed. Custody of the five children to remain with their mother until they come of age.