chacha mwita vs nyasanda wambura 2012 tzhc 75 14 august 2012

IN THE HIGH COURT OF TAN ZAN IA IN THE DISTRICT REGISTRY OF MWANZA AT MWANZA [PC] CIVIL APPEAL No. 40 2009 Arising From Tarime District Court Civil Appeal No 16 of 2 00 8 (Original Tarime Urban Primary Court Civil Case No 4 8 of 2 0 0 7 ) CHACHA MWITA...........................................APPELLANT VERSUS NYASANDA W AM BURA..................... ...RESPONDENT JUDGMENT MRUMA, J. The appellant Chacha Mwita successfully sued the Respondent in Tarime Urban Primary Court for refund of bride price. The Primary Court had ordered that the appellant be paid 6 herds of cattle. The respondent was aggrieved and he appealed to the District Court. In its judgment the District Court reversed the decision of the prim ary court. It held that since the m arriage between the parties had subsisted for a considerable long time the appellant could not get refund of bride price. The appellant is aggrieved and has a p p ea le d to this court. At the trial the appellant told the court that he had paid 8 herds of cattle, one got and cash T.shs 1 5 ,0 0 0 /= . The Respondent didn’t challenge this evidence. He only requested the court to reduce the amount refundable should be reduced since the couple had children. In think on the facts a va ila b le the trial court should have been confronted by only one question and that is whether the appellant was entitled to a refund of the whole or any part of bride price. Under p arag rap h 52A and B of the Delaration of Customary Law (Law of persons) G N 2 7 9 / 1 9 6 3 , if there are any children to the m arriage and the m arriage has subsisted for long time, no bride price is refundable [See also Andrea Chilena Vs Keni Masaka (1992) TLR 436], evidence that the parties married in 1 98 9 and they are blessed with two children Mkami who was 18 years in 2 0 0 8 and M wikwabe (1 4 years old). One of these children is m arried. From 1 9 8 9 when the parties got m arried to 2 0 0 7 when they divorced is 1 8 years. This is a considerable long period of time. This is not disputed. Equally undisputed is the fact that the m arriage was blessed with children. Thus, in terms of the provision of p arag rap h 52 A and B of the Declaration of Customary Law (Law of Persons)GN 2 7 9 / 1 9 6 3 the appellant is not entitled to refund to any part of the bride price. In t h e I dismiss the a p p e a l with Costs. 1 8*h September, 201 2 Date : 2 1 st August, 201 2 Coram: Hon. A.R. Mruma, J. For Appellant: Present in person For Respondent: Mr. Corenelous Henry Van (Owner and Director of the Respondent’s Coy. B/C : Rose Court:- Judgment delivered this 2 1 5t d a y of August, 201 2. Right of A p p eal Explained. JUDGE At M w anza 14th August, 2012