Chach Gikaro v. Marwa Maroro, (PC), Civ. App. 117-M-66, 6/12/67, Seaton J.

Chach Gikaro v. Marwa Maroro, (PC), Civ. App. 117-M-66, 6/12/67, Seaton J.

Plaintiff, Kenyan, sued in Primary Court in North Mara for custody of a boy born in 1957, during his wedlock with the boy’s mother. After their divorce, the mother married defendant, a Tanzania, and she and the boy have resided with him in the North Mara community for six years; during this time the defendant cared for the boy as his own son. During the three years between the divorce and the mother’s remarriage, the plaintiff had paid Shs. 5/- monthly for the boy’s support to his father-in-law; he had also left three head of cattle with his father-in –law for the same purpose, the cattle being part of the bride wealth plaintiff had originally paid.

            Held: (1) Primary Court jurisdiction may be based, in personal actions, on the fact that defendant is ordinarily resident within the local jurisdiction of the court. The court in North Mara had jurisdiction, therefore, despite the fact that plaintiff is a Kenyan. (2) The case is governed by the customary law of North Mara.

Under the Judicature and Application of Laws Ordinance, 1961, s. 9(1), customary law governs civil matters “relating to any matter of status of ……a person who is or was a member of a community in which rules of customary law relevant to the matter are established and accepted ……” The boy, whose status is in issue, is a member of the North Mara community; the Local Customary Law (Declaration ) Order, Government Notice No. 279 of 1963, was specifically made binding to this area by Government Notice No. 604 of 1963. (3) According to Rule 175 of the law of persons as declared in Government Notice No. 604 of 1963, children born in wedlock belong to the father. Thus, plaintiff is entitled to custody of the boy. (4) The boy’s mother must be given “reasonable access” to her son, and the defendant must be compensated by plaintiff for any loss he may have sustained in providing for the boy’s welfare. [Citing Government Notice No. 604 of 1963, Rules 104, 105.] Case remitted to Primary Court for further hearings as will able that court to make an order consistent with the judgment of the High Court.