Mtaki v. Mirambo (PC) Civ. App. 289-M-69; 4/5/70; Seaton J.

Mtaki v. Mirambo (PC) Civ. App. 289-M-69; 4/5/70; Seaton J.

The Respondent/Plaintiff Mirambo instituted this suit for custody of two female children born of the appellant’s mother now deceased. The Appellant /Defendant is living with the two children in question as their half brother. The suit was originally brought in the primary court as civil Case No. 25 of 1969 which the respondent lost. He then brought another case Civil Case No. 36 of 1969 in which he prayed for an order that he might pay to the appellant six head of cattle as dowry for his deceased mother so that he might “redeem” the children which he had begot by her. He again lost in the primary court whereupon he appealed from both cases t the district court which consolidated his appeals and gave judgment in his favour. The respondent’s Counsel on appeal to the High Court submitted that the second case in the primary court was incompetent because of res judicata. The court however preferred to deal with the appeal in its merits since it was not at all clear whether the issues in the two primary court cases were the same. The assessors in the primary court in the first case advised the magistrate that the respondent could not have the right of custody of the two children because he is not their father. The primary court magistrate agreed with his

Assessors on the ground that the evidence was insufficient to establish that the respondent was married to the appellant’s other; that he had only established that they had love affairs; and that the respondent could not have custody of the children because he did not pay dowry in order to legalise the marriage between him and the defendant’s mother. In the second case, the primary court magistrate and assessors upheld their former decision and in addition the primary court magistrate agreed with the assessors that according to Sukuma Customary Law a person may not pay dowry for a woman who is now dead.

            Held: (1) “It appears to this Court in its consideration whether there was sufficient evidence to establish that there a marriage between the parties; the primary court may have overlooked section 5 of the Law of Persons Customary Law (Declaration) G. N. No. 279/63 which provides that the payment of bridewealth is not essential for the validity of a marriage. It would also seem that there is no legal foundation in G.N. 279/63, the Law of Persons, for the proposition that dowry cannot be paid in respect of a woman who is already dead although it may be correct as a proposition to Sukuma Customary Law. In any event in seems that the primary court was not satisfied that the respondent had established that he was the father of the two children. It was on this point that the district court differed from the primary court.” (2) “Assuming that the district court was correct that the respondent was the father of these two children, there was still to be decided the question whether he was their natural father or those children had been born in wedlock between him and the appellant mother. Bearing in mind the evidence of the respondent’s own witnesses that appellant’s mother never lived at his house but he only visited her from time to time in the homestead of the appellant’s relatives, it would seem that at most what the respondent established from the evidence was that the had been the natural father of these two children. But if that were so, it was his right according to section 181 of G.N. 279/63 to legitimize each child by the payment of one hundred shillings to the mother’s relatives before the child was weaned. As he did not do so, it would appear that time has run against him and it is too late to legitimize them at this stage by payment of money.” (3) “It follows; therefore, that the finding of the primary court was correct that the respondent could not have custody of the children and that the appellant as the male heir of his father and of his father’s brother is entitled to retain the custody of these two children.” (4) Appeal allowed.