Serikali s/o Lesakara v. Kiriwasi s/o Kukutia. (PC) Civ. App. 25-A-69; 21/11/69; Platt J.

Serikali s/o Lesakara v. Kiriwasi s/o Kukutia. (PC) Civ. App. 25-A-69; 21/11/69; Platt J.

The case concerned the custody of two children the offspring of the appellant and his wife. This woman had been married to the Respondent with whom her relations appear to have been sour and she bore no children. She left the respondent and after some time she was given to the appellant by the elders of her family. The question in issue was whether the appellant and his wife had the right to the children. The dispute came to a head when the Respondent took possession of the children. Therefore the Appellant sued in the Primary Court of Kissongo for their return. He was successful, but the District Court allowed the appeal. The children were then returned to the Respondent. Now the appellant appeals for their return back to him and their mother. The lower Courts found as a fact and there was a preponderance of evidence to support the finding that the children had been born while Naiwasubot was living with the appellant.

            Held: (1) “I cannot say that the children have been really prejudiced. Generally, in my view, the Court should leen whenever possible consistent with the rules of customary law, to unite families, as that would seem in the long run to be of greater benefit to the children, whose interests are paramount. Customary

law is clear that during the existence of a lawful marriage the children borne by the wife in adultery may be claimed by the husband. This is the Respondent’s case and the assessors and District Court agreed with him. But it is also said that customary law provides amongst the Masai that if a woman leaves her husband and stays at home without the husband seeking after her the marriage is deemed to be at an end and the parents or those who stand in lose parentis may give the woman formally in marriage to another man. The period should be three years. It was on this ground that the assessors and Primary Court acted. As far as I can see there is no dispute in principle between the lower courts, the argument arising out of the inference to be drawn from the facts whether there was an end to the first marriage was indeed somewhat conflicting. On the whole it seems that the first marriage was a failure. It is no doubt true that [the Respondent] obeyed all the customary laws as to the marriage, out [the woman] failed to produce him any children and left her husband for a period of eight years. This was not too great a hardship it seems, as he had three other wives and as he himself said “a woman who does not give birth to children is useless”. He alleged that he had visited her and he sent her presents on the birth of the children…… the views expressed below are all understandable, but it seems to me that the views of the Primary Court, though in relation to other tribes. I am inclined to think that too legalistic an approach was adopted by the assessors in the District Court. Moreover to accept the views of the Primary court would seem to me to result in broader justice. Therefore while not wishing to detract from the Masai rules granting the husband custody of children born as a result of his wife’s adultery I would agree that the marriage was properly deemed to have ended before the children were born and that therefore Kirimasi had no right to them.” (2) “In the result the decision of the District Court is reversed and the judgment of the Primary Court restored.”