chacha mwita vs nyasanda wambura 2012 tzhc 36 18 september 2012

IN THE HIGH COURT OF TAN ZAN IA « IN THE DISTRICT REGISTRY OF M W ANZA AT MWANZA [PC] CIVIL APPEAL No. 40 2009 Arising From Tarime District Court Civil Appeal No 16 o f 2008 (Original Tarime Urban Primary Court Civil Case No 48 of 2007) CHACHA MWITA.................................... APPELLANT VERSUS N YASAN DA 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 Prim ary Court had ordered that the appellant be paid 6 herds of cattle. The respondent was agg rieved and he app ealed 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 agg rieved and has ap p eale 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 w as entitled to a refund of the whole or any part of bride price. Under p arag rap h 52 A 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 arriag e has subsisted for long time, no bride price is refundable [See also Andrea Chilena Vs KeniMasaka (1992) TLR 436], In the case under consideration there is undisputable evidence that the parties married in 1 9 8 9 and they are blessed with two children Mkami who was 18 ye ars in 2 0 0 8 and M wikwabe (14 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 w as 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 279/1 9 6 3 the appellant is not entitled to refund to any part of the bride price. In t h e j^ n t I dismiss the a p p e a l with Costs. At M wanza 1 8th September, 201 2 3 Date : 2 1 st August, 2 0 1 2 Coram: Hon. A.R. Mruma, J. For Appellant: Present in person For Respondent: Mr. Corenelous Henry Van (O w ner and Director of the Respondent’s Coy. B/C : Rose Court:- Judgment delivered this 2 1 st d ay of August, 2 0 1 2 . Right of A p p e al Explained. JUDGE At M w anza 14,h August, 2012