Mwaipopo s/o Mwakibale v. Mtelina d/o Nbimbile. (PC) Civ. App. 44-D-68, 6/1/69, Saidi J.

Mwaipopo s/o Mwakibale v. Mtelina d/o Nbimbile. (PC) Civ. App. 44-D-68, 6/1/69, Saidi J.

M had divorced E because she neglected him when he was ill. He undertook not to claim a refund of the dowry so long as she did not remarry because they had lived together for a long time and had four children. E said she would not marry because she was old, but then promised that if she did want to remarry, she would give hi first refusal. M later proposed to E. He did not receive an answer and later heard that she had married another man in the village who had paid dowry for her. M did nothing about this himself but contested her claim for “ng’ombe wa pongezi” – four cattle for a ‘pension’ for having lived with him for 23 years and borne him four children. He contended that he was entitled to four of the six cattle paid to her by the second husband. The assessors in both the courts below were unanimously of the view that the claim to a pension was maintainable under Nyakyusa Law. They awarded the cattle from the second dowry to M as partial refund of this dowry, less three to E as her pension.

Held: (1) By paragraph 52(b) of the Customary Law (Declaration) Order 1963 no dowry or any part of it is to be refunded to the husband if the wife has borne him modify paragraph 52 in consideration of the guilt of either spouse and gives the court power to consider other matters which are relevant thought not specified in the order, for example, re-marriage of the divorced wife and the payment of another dowry.

            (2) The husband, M, is entitled to half the second dowry.

The claim by an ex-wife for a pension is maintainable under Nyakyusa Law. E is entitled to the other half of the dowry.

            (3) Appeal dismissed.