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- IN THE HIGH C0UIT OF TANZMiIJ AT JRUSHL ( c) CIVIL APPEAL NO. 84 OP 1973 (FRO1I THE DECISION OF THE DISTRICT COURT OF TNGL JT TINGi IN CIVIL 10-FE!"Ti NO. 5 OF 1973) ELIZABETHRSELI • (Original Respondent) • esus - • • -THQMAS BALTAZAR .. ... . .•.. .• .......... RESPONDENT (Original Ape1iant) • JUDGMENT - JONATHIJ. In the PrLaary Court the respondent woman successfzl1y sued the respondent for damages for deflowering her daughter, a schoolgirl.' The District Court on appeal reversed the decision of the trial court, this with costs. The evidence as whole, through the respondent in his evidoAce donied the alleged incident, scene to make it clear that the respondent was found in confinement with the appellant's daughter in his roam in circumstances which strongly g. - estod they had been having sexual intercourse. That.thatnaa in fact hapoened.was confirmed by the girl in her evidamce, while the respondent upon being asked in a meeting suboc1uently appears to have admitted having sexual intercourse with thet girl. . It was then agreed that he should compensate : t0 appellant with the sum of He scene to have had only s.50 on him then and he undortook to pay the balance at a lster date. This ho never .did, hence the apefleua-t filing the suit. The first appellate court allowed tiao appeal only because the claim in its view was not maintainable under the Chagga Customary rules to which the parties see to subscribe. There seams to be no provisin in the Customary Law Declaranon Order for damgos being paid to the parents of a girl found to have been defloweroci vith her consent as in the present case. That is not to say, hoovcr, that such claims are necessarily unnaaintainablo under tho Ohagga Customary Law. It was a question of fact, to be determined by people conversant with ouch law, if it provides a reiedy for an incident such as this one, and it should not be assunod that, merely because a claim has been filed in the primary court there are in existence customary rules relevant to the claim. In the present case neither the primary court magistrate nor the assessors sitting with him directed their minds to this, and I ay eay that, oven had tho,y done so they would most probably have failed to come out with an appropriate answer, this inasmuch as they soon to belong to tribal communities different from that of the pa:•ties. Accordingly, it seems to £10 that the learned District igistrate was right when ho allowed the appeal before him. Understandably........ TJl1ders1a1idab1y, -the aprolJarrb was grossly annoyed at the resp'onclont defloworing her daughter but it cannot be taken as a general proposition that, the deflowering of one's datghtor, thcuglia aoo1. alone öhtities one to danages. In the rssuLt the appeal is disnissed. I riake no order for the costs of this appeal as the parties did not appear. is regards the costs of the first appeal, however, I would think that in the circnstances of the case the respondent should not. have been awarded any costs.. The District Court's ordcrin this regard is accor.ingly set aside. (p. M. JOTiiH.N) JUGi. Judgiiit to be £orwardcdo the Dirict Court to hvc the jud cnt delivered to the porties. (p. . JO?LJH.LN) PIJ/MT JTJDGi