Masero Mwita v. Rioba Masero, (PC) Civ. App. 151-M-69, 15/7/69, Kimicha J.

Masero Mwita v. Rioba Masero, (PC) Civ. App. 151-M-69, 15/7/69, Kimicha J.

The respondent, who was the appellant’s son, wished to get married, and asked his wealthy father for cattle for brideprice. The father refused, mainly because of an earlier dispute between them which resulted in the father serving a prison term. The son then requested the clan elders to persuade his father to give him the brideprice, but they failed. The son brought an action in the primary court to obtain the brideprice from his father, and succeeded. The district court upheld the son’s claim. Upon further appeal.

Held: This dispute involves a very difficult decision. And that is, how much of the recognised Customary Law should be enforced by the courts? It is undisputed that according to Kuria Customary Law the respondent has the right to claim brideprice from his wealthy father and in the remote past a reluctant father could have his cattle seized by clan elders and used for the son’s brideprice. Or if the son decided not to use this semi-violent method and four the brideprice from other sources then the members of the clan would punish the father by austrocising him and exclude him from all social functions and treat him with contempt. Very few fathers were prepared to undergo this public punishment. But I am of the view that, this obligation though very strongly felt by Kuria tribesmen, cannot be enforced by the courts. To do so would be dangerously encroaching on the individual rights of property. I have in mind that a parent has both moral and legal obligations for the moral and physical maintenance of his infant child. If he does not fulfill these obligations the courts have inherent jurisdiction to force him to fulfill them. But once the child reaches maturity and is physically fit the moral obligation remains but the legal obligation very much weakens or disappears altogether. In this case the son is mature and physically fit. Also his relationship with his father leaves very much to e desired. I am therefore of the view that brideprice is not a necessity which the father is legally bound to provide to his son at this stage of his life. The courts have therefore no inherent jurisdiction to enforce it.” Appeal allowed.