Rajabu Mwalimu v. Hadija Mawulidi (PC) Misc. Civ. Cause 3-D-69; 17/6/7P; Makame Ag. J.

 

Rajabu Mwalimu v. Hadija Mawulidi (PC) Misc. Civ. Cause 3-D-69; 17/6/7P; Makame Ag. J.

The appellant commenced proceedings in the primary court seeking the return of his wife/respondent who in turn alleged that she had been divorced. The district magistrate found that the parties were divorced by ‘talak’ but resumed cohabitation the applicant having exercised his Islamic right of recall (rejea). The High Court (Duffs J) declared the marriage to have been dissolved. The applicant then applied for leave to appeal to the Court of Appeal for East Africa arguing that the High Court had failed to consider the issue of rejea. The application was opposed on the ground that the district court’s finding that there had been a rejea had been reversed by the High Court so that in the absence of a point of law of general public interest, leave should not be granted.

            Held: (1) “After carefully reading the judgment of my brother duff, and after considering the submissions by the learned counsel for  the respondent, I feel certain, and with genuine deference, that it can be successfully argued that there is a point of law of general public interest involved.” (2) “With great respect Duff J. seems to have been unduly influenced, if I may use the expression, by the fact that the respondent had acquired a new “husband”. In the opinion of the learned Judge the fact that the wife had remarried is some indication hat the first marriage had lapsed. In my view this is arguable. I would have thought that that was merely a strong indication that there were marital vicissitudes and that the marriage had practically no chance of continuing. It is questionable whether in circumstances such as are revealed in this case a court is entitled to hold that a wife in an Islamic marriage is entitled to remarry without going into the question of whether or not there had been a “rejea”. (3) “Rejea in this context refers to the husband’s right to recall the wife. Where she has not physically returned to the matrimonial home it cannot necessarily be held that there was no “rejea” that is the exercise of the right to recall her.” (4) Leave to Appeal to the Court of appeal for East Africa granted.