Can i claim for the refund of dowry or other gifts which were given in contemplation of the marriage?

A person may file a suit to claim gifts, dowry or anything which were given in contemplation of the marriage where the marriage has not been contracted. But, where the marriage has been contracted, any gift cannot be claimed. See the case of WILBROAD BUGAMBO vs PIUS WILBARD (PC) CIVIL APPEAL NO. 36 OF 2022.

The above case law ruled that;-

Dowry should not be considered as a price that a husband pays to get a wife. Viewing dowry in that perspective would make women commodities for purchase as there is no price to equate the price of a wife to any amount of money, stock or any kind of property that a person gives. The payment of dowry, whichever amount, is just a gift or kind of appreciation given to the bride or to the bride's parents. Now, when dowry is viewed in that angle, it squarely fits into the provision of section 71 of the Law of Marriage Act which prohibits the claim for return of any gift given in contemplation of marriage which has so far been contracted. The section provides that:

"72.. A suit may be brought for the return of any gift made in contemplation of a marriage which has not been contracted, where the court is satisfied that it was made with the intention on the part of the giver that it should be conditional on the marriage being contracted, but not otherwise. "

In terms of the above section, a person may only file a suit to claim for gifts, including dowry which were given in contemplation of the marriage where the marriage has not been contracted. But, where the marriage has been contracted, any gift cannot be claimed.

Furthermore, in our law, the application of section 71 of the Law of Marriage Act, hinders court to invoke the application of any customary or Islamic law that support the return of dowry. Section 11 (4) of the Judicature and Application of Laws Act, Cap. 358 RE 2002 has a clear provision on this point that:

"11 (4) Notwithstanding the provisions of this Act, the rules of customary law and the rules of Islamic law shall not apply in regard to any matter provided for in the Law of Marriage Act."

In the Case of Generoza Ndimbo v, Blasidus Yohanes Kapesi [1988] TLR 73, this court was confronted with a case of similar facts to this case and stressed further on section 71 of the Law of Marriage Act that:

"A suit may be brought for the return of any gift made in contemplation of marriage which has not been contracted... the respondent must prove to have given the gifts to the appellant on the condition that the parties intended to marry. "

Also, in the case of Mohamed Ndwata v. Hamisi Omari [1988] TLR 137, this Court held that:

"Once a marriage has taken place, any gifts, whether traditional or otherwise, given in contemplation of the marriage become the absolute property of the recipient and it cannot be diverted by subsequent divorce: Section 71 of the Law of Marriage Act of 1971 which also supersedes rules of customary or Islamic Law."

This judgment delivered by Ntemi .N .Kilekamajenga at BUKOBA on 23rd day of September, 2022.