Felista Ishekanyoro v. Martin Banyuka, (PC) Civ. App. 175-M-66, 11/12/67, Seaton J.

Felista Ishekanyoro v. Martin Banyuka, (PC) Civ. App. 175-M-66, 11/12/67, Seaton J.

The issue in this case concerned the distribution of the estate of deceased. Plaintiff, his widow, was childless. There was evidence that defendant, Martin, was the son of a previous wife of deceased, and that he had been born in deceased’s house, had lived with deceased and been supported by him during his childhood and had been given money by deceased with which to buy a shamba. In refutation, plaintiff presented evidence that defendant, after his birth, had been taken to one Gido to be shown, and that this custom showed that the child was born outside deceased ‘s household. There was also evidence that defendant had later been expelled from deceased’s household. In addition, there was evidence that deceased had sired a son, Ngambeki, by Plaintiff’s younger sister. Buhaya customary law was applicable.

            Held: (1) The burden was on plaintiff to prove that defendant was an illegitimate son an not legally entitled to the property, and she has not fulfilled this burden. (2) Under para. 77 of the Law of Persons as declared in the Local Customary Law (Declaration ) (No. 4) Order, 1963 (G.N.436 of 1963) and under para. 27 of the Second Schedule to that order, a widow has no share of the inheritance of her deceased husband but does have a right to receive a stated percentage of his movable property, and, until she remarries or dies, to use his house and receive a stated Share of perennial crops and use a stated share of this land. Her share is to be cared for by her children. (3) The District Court correctly ordered that the estate should be distributed between defendant and Ngambeki and that plaintiff could remain in the care and protection of either of them as she chose.