Ng’washi Kamwezi v. Bunga Kulaba, (PC) Civ. App. 111-M-69, 26/6/69, Seaton J.

Ng’washi Kamwezi v. Bunga Kulaba, (PC) Civ. App. 111-M-69, 26/6/69, Seaton J.

The appellant obtained a divorce from her husband, the respondent, under s. 169 of the Law of Persons on the ground that he had become impotent within 5 years of the marriage. While she was still married to the respondent she became pregnant by another man and the child was born seven months after the divorce. The appellant appealed against the order of the Primary Court granting custody to the respondent.

Held: (1) “The law recognizes two conditions of impotence: The first wedding night, k the husband is completely impotent. The second is when the husband is not impotent for the whole time of the marriage but he is impotent after sometime during the first five years of their married life, in which case the wife is entitled to a divorce. But when her gest a divorce in the second case the question arises: If the wife becomes pregnant, whose would the children be? If the child is born while they are married, of course it belongs to the husband. This is declared in S. 175 of the Law of Persons”. (2) “But in this case, the child was born seven months after the parents had been divorced ….. The assessors, who assisted me in this appeal and are both Sukuma elders, considered that he child belongs to the respondent. However they advised that as the child is very young, for the present it should remain with its mother, the appellant, until the child reaches a more mature age, and that meanwhile the respondent should pay for the child’s expenses. I would agree with the assessor that, according to the evidence in this case and the customary law as laid down in Government Notice No. 279 of 1963, [the Law of Persons] the child belongs to the respondent. In cases concerning the custody of children, the paramount consideration is the welfare of the child and as it is a very young female child, I would agree that for the present it should remain with the mother. But I do not think the child should remain with the mother until

            She becomes fully grown because the respondent is married to another woman and since he is married and can provide a home, there is no reason why his two children should not be together. And so, I would say that when this present baby, Bukumba, reaches the age where she is able to go to school, she should go to live with her father, the respondent.”