Simlongole v. Kitinyi, (PC) Civ. App. 73-D-1968, -/5/69, Saidi J.

Simlongole v. Kitinyi, (PC) Civ. App. 73-D-1968, -/5/69, Saidi J.

            The appellant married the mother of a girl called Maria in 1946. Maria was born in 1950 and was brought up in the appellant’s house until she was 16 years old. Her mother was divorced by the appellant in or about 1954 and was married to the respondent in the same year. When she was about 17 years old, Maria purported to renounce the paternity of the appellant and claimed to be a daughter of the respondent as a result of which the appellant commenced these proceedings to recover Shs. 3,000/- the expenses incurred on Maria’s maintenance and education.

            Held: (1) “I will first of all say that there is no cause of action against the respondent as he did not claim custody of Maria and had not been sued for damages for adultery with Maria’s mother from the beginning, although he corroborated the evidence of Maria’s mother, who is now his legal wife, that he had committed adultery with her.” (2) “The next and most important issue to be decided is whether or not a child is at law entitled to renounce paternity of one man and adopt that of another. I firmly feel that no child should be allowed to choose its paternity or else there is going to be endless trouble in society. Legitimatization of illegitimate children is dealt with in clause 181 and 182 of the Customary Law Declaration which provide: “181 (A) A father has the right to legitimate his illegitimate children at any time by marrying their mother. (B) If a man wishes to legitimate his child without marrying its mother he can do so before the child is weaned by paying Shs. 100/-to the girl’s father. (C) The place where the child is brought up shall be agreed by its father and mother, or if they cannot agree it will be fixed by order of the court. In any case, the father shall be responsible for the maintenance of the child.” “182. Only the man who has been named as father by the mother at the time of the child’s birth has the right to legitimate it.” It seems to me that a child born in wedlock could not be made a subject of legitimatization even if it had been fathered by a man other than husband of the mother as a result of adulterous association with the child’s mother unless the husband himself disputes paternity and charges his wife and the other man with adultery. This is clearly the position law and it is so stated in clause 175 of the Customary Law Declaration which provides that - “Children born n wedlock belong to the father.” Reading clauses 175, 181 and 182 of the Customary Law declaration as they are I feel that only illegitimate children of single women can be legitimatized but not those born in wedlock unless the husband of their mother repudiates paternity on grounds of adultery. It is also my view that legitimatization is largely a matter within the exclusive exercise of the fathers and the children concerned have practically no right in it. To this extent a child could not therefore elect as to its paternity. The only exception where a child would normally be entitled to seek a court’s declaration as to paternity would arise when its legitimacy is contested by strangers in a bid to exclude it from, say, the right of inheritance, maintenance, protection, and education or the right of bearing its alleged father’s clan or surname, kinship, and family ties. This of course would not involve repudiation of one paternity and adoption of another paternity as it is the case in these proceedings. It would only mean defending the paternity already possessed from attack by outsiders. In the result I must declare Maria the lawful daughter of the appellant who will have the right of 

arranging for her marriage and take the bride-price. Maria now a grown-up and will be allowed to choose where to live whether with her father or mother as I do not feel it is advisable to make any order as to custody which in fact was not a subject of these proceedings.”