Mwaja s/o Mkomawanyu v. Mazengo s/o Ndungu, (PC) Civ. App. 105-D-67, 10/2/68, Saudi J.

Mwaja s/o Mkomawanyu v. Mazengo s/o Ndungu, (PC) Civ. App. 105-D-67, 10/2/68, Saudi J.

Appellant sued his father-in-law for the return of bride wealth, after having obtained a divorce from his wife because she had left him. There was evidence that the wife had given premature birth during the marriage. There was also evidence that she had deserted appellant because he had   tally failed to support her.

            Held: Paragraph 52(b) of the restated Customary Law, G. N. No. 279 of 1963, provides, “In cases in which no grounds of divorce are offered by any of the two parties…. (i)f a woman has a premature birth and the existence of a foetus is proved by a female relative of the husband, the wife is considered as having has a child.” It further provides that if children have been born, no bride wealth shall be returned to the husband. Therefore, appellant is not entitled to the return of any part of the bride wealth.

            The Court stated, obiter; Even had no children been born, appellant would not have been entitled to the return of any substantial part of the bride wealth because he had caused his wife to leave by failing to support her.