Waryoba d/o Katara v. Kirimi s/o Wangari, (PC) Civ. App. 123-D-66, 19/11/68, Saidi J.

Waryoba d/o Katara v. Kirimi s/o Wangari, (PC) Civ. App. 123-D-66, 19/11/68, Saidi J.

The respondent and the appellant were husband and wife by virtue of a customary marriage. One child was born in lawful wedlock, and it was not disputed that the respondent was the father. The appellant subsequently sought and obtained a divorce by judgment of the court. In proceedings concerning custody of the child, both the Primary Court and the District Court declared the respondent the father of the child and awarded him custody on that basis.

Held: (1) “The judgments of both courts below are ….. right in pronouncing the respondent the father of the child but I think they did not properly take into account the welfare of the child itself. As the facts are I am firmly of the view that the welfare of this child will be more secure if it remains in its mother’s custody than in its father’s custody ……” Custody awarded to the appellant.

            (2) “The respondent is declared the father of the child and will have the right in due course to arrange the marriage of the child and to receive the bride price and is also given leave to apply to the court to review this order on custody if circumstances charge and the interests of the child require it.