Mwamusiku v. Kanyibi (PC) Civ. Application 14-D-69; 3/7/70; Saidi, J.

Mwamusiku v. Kanyibi (PC) Civ. Application 14-D-69; 3/7/70; Saidi, J.

This is an application for leave to appeal out of time. The application involves two cases. In the first case Mwaikama obtained divorce against his wife under clause 134, Customary Law Declaration, on the grounds of desertion by his wife Gwantwa. The fact, as recorded in the additional evidence, shows that Gwantwa deserted her husband five months after their marriage and she could not be traced for almost a year. Consequently divorce proceedings were commenced by Mwaikama. Thereafter Gwantwa was discovered in the house of the respondent, Tabu Kanyiki, and as a result Mwaikama filed the second case claiming “ugoni”, that is compensation for committing adultery with he wife of another. He filed this case on the 8^th April, 1969, after he had been granted divorce on 9^th May, 1968, about a year before. He lost the claim in both courts below and now appeals t this Court out of time with a petition that he should be granted extension of time to enable him to appeal.

            Held: (1) “If there were prospects of success in Mwaikama’s appeal I would have granted him leave to appeal out of time but on the facts, as they are, it does not appear to me that he can succeed in his claim against Tabu for ‘ugoni’. I think the Primary Court rightly rejected the claim for ‘ugoni’. The additional evidence taken on my instructions shows that the marriage of Mwaikama to Gwantwa was dissolved on 9^th May, 1968 and that she was married to Tabu, with whom she had then been living, in the month of August 1968. It was after Gwantwa’s marriage to Tabu that her where about came to be known by Mwaikama and thereafter he decided to sue Tabu for ‘ugoni’. Although I feel sympathy for Mwaikama in the way Tabu managed to take his wife, at first illegally and later on legally by marrying her, it appears that Mwaikama rushed the matter by seeking divorce rather early, and he cannot now complain against Tabu. Has he been a little patient and discovered his wife living with Tabu, the claim for ‘ugoni’ would have been successful and thereafter he could also have obtained divorce on the grounds of adultery. But he elected to start in the other way round and Tabu was clever enough to wait until the marriage of Gwantwa to Mwaikama was dissolved and then married her.” (2) “Both courts below advised Mwaikama to receive the bride price of five cows, one goat and Shs. 200/-, he had paid to the father of Gwantwa and drop the claim for ‘ugoni’. This Court agrees with this direction. There should not, however, be a fresh suit for recovery of the dowry. On the dissolution of the marriage on grounds of desertion by the wife followed by her marriage to another person who had already paid dowry, the order for refund of the full dowry to the first husband should have been make by the trial court and is accordingly made now by this court. The father of Gwantwa is ordered to refund the full dowry to Mwaikama within six months form the date this judgment is read to him.” (3) Application dismissed.