Saidi v. Msamila (PC) Civ. App. 159-D-69; 13/5/70; Makame Ag. J.

Saidi v. Msamila (PC) Civ. App. 159-D-69; 13/5/70; Makame Ag. J.

This was a suit by the appellant, unmarried mother for maintenance of a child. The Primary Court held that respondent was the father of the child and ordered maintenance at the rate of Shs. 150/- per month until the child was eighteen years old. Custody was awarded to the child’s maternal relatives. The District Court held that ss. 181 and 182 of the Law of Persons (G.N. 29/63) were not applicable so that the mother could only have proceeded through the Affiliation Ordinance (Cap. 258). On further appeal to the High Court:

            Held: (1) “I am satisfied that the circumstances revealed by the evidence on the record warrant the application of Chapter IV  (111) B section 181 and 182 of the Law of Persons, G.N. 279 of 1963.” (2) “Respondent was responsible for the maintenance of the child. However the figure the primary court magistrate fixed, Shs. 150/- per month was arbitrary in the absence of any knowledge of the respondent’s salary.” (3) “The child is illegitimate within the meaning of the law, and section 181 B provides: ‘If a man wishes to legitimate his child without marrying its mother he can do so before the child is weaned by paying Shs. 100/- to the girl’s father’. In this case the child was weaned a long time ago but legal provisions must be interpreted in the broad spirit in which we must apply them in order to achieve justice, and not be allowed to fetter us dogmatically. The child’s mother went to court, and, before that, to the probation office, as she was of course entitled to do. Before that she admits that the respondent had been looking after both her and the child, if rather inadequately. In view of the fact that what mutual affection there still was between the a parties obviously had waned when matters were taken to others, it would be unrealistic to expect the respondent to have taken the necessary steps to legitimate the child in what must have been by then a charged atmosphere. I am satisfied that the justice of the case and the welfare of the child demand that the respondent be now afforded the opportunity of legitimating the child by paying the necessary Shs. 100/- to the appellant’s father.” (4) On the question of custody – “the welfare of the child must be the paramount consideration. I shall therefore need to have some idea of the parties’ living conditions, their surroundings and ways of life. For these last matters we shall have to retire to chambers.” (5) Appeal allowed.