Juma Kisuda v. Hema Mjie (PC) Civ. App. 85-D-1967 25/6/69 Saidi J.

Juma Kisuda v. Hema Mjie (PC) Civ. App. 85-D-1967 25/6/69 Saidi J.

The proceedings concern a claim for custody of 5 children. The mother of the children, Mariam, was originally married by a member of Hema’s clan a long time age. Her husband died and she was inherited by her brother-in-law who again died. As a result she left clan and went to live with her mother for several years. She then was married to Juma, the appellant, with whom she had the 5 children in question. Hema then sued for custody of the children, and an earlier order of the High Court confirmed his right to them on the grounds that under Nyaturu custom the marriage to Jumawas void as the earlier marriage had not been dissolved and the bride-price refunded. It was also held that Juma was entitled to be reimbursed for the expenses incurred on these 5 children since their birth. The sole question remaining concerned the amount of these expenses.

            Held: (1) “The evidence taken by the district court on the average cost of maintaining a child at the village of the parties is not helpful ….. Apart from Juma who spoke in money terms as he has personally incurred expenses on the maintenance and education of the children, both Hema and the assessors could hardly be diverted from their deep rooted belief and argument on “mtonga”, i.e., one cow, the traditional reward for rearing the child of another. It is obvious that one single cow could not cover even an insignificant fraction of the cost of bringing up a child and sending it to school for several years. The argument on “mtonga” arose also in Abdallah Salimu v. Ramadhan Shemdos (P.C.) Civil Appeal No. 55 of 1967) and this court had to assess a reasonable figure as the average cost for maintaining a child for a year in Lushoto and Singida would be almost the same and I would accordingly assess the maintenance at Shs. 100/- a year per child. Worked out on the ages of the children it would come to Shs. 6,400/-. The expenses on the education of the 3 elder children total Shs. 333/-. (2) “It is in the evidence that 2 of the elder daughters have been married and the bride-price was taken by Hema. Under Nyaturu customary law Hema is the legal father of the children as this law envisages that the children were born in a technical wedlock. Hema will have the right to arrange for the marriage of all the daughters and receive the bride-price but he must bear the expenses incurred in their maintenance and education totaling Shs. 6,733/-. This is the sum already spent on the children by Juma. Hema will be allowed to arrange for the marriages of the daughters and take the bride-price if he pays this sum to Juma otherwise Juma will have to realise it from the bride – price.” (3) “The custody of the 2 daughters already married is no longer an issue of importance as they are now living with their husbands. The custody of the remaining children will remain with their mother, Mariam, since their welfare and psychological growth would be affected if they were to be removed from their mother and be placed in a different house with persons they had not met before.”