19750204 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA - AT MWANZA (PC) CIVIL APPEAL NO. 104 OF 1971 (From the decision of the District Court of North Mara atrime'inCivilAppeaINo. 218 .................. 0..of 1970) Bf Ore 'S. N. Kaji Esq., DISTRIcT MAGISTRATE KISIRINKONBEO 0 0O'O 0000.0000 00000000000000000000000000.000 O CAPPELLANT versus C HOKERi. NYASIBORA. • • 0 • • • • •. • 00 • . RESPONDENT -OoO- I JUDGNENT NFALILA, J The appellant, Kisiri Nkombe, sued the respondent the late Chokera,Nyasibora inthe prirriary,.court of North Nara District at Nyamwigura claiming shs. 4,000/= being the costs of rnainteiiance .n respect of the child Mwita•. The .appellnt claimed in the .Priiiar Court that he married the respondent's present wife Robi while she, was pregnant and that while this marriage was still subsisting Robi gave birth to the child Mwita and after Mwita's birth he looked both after him and his mother throughout the period that the marriage between him and Robi lasted that is to say 1957 to 1966. When this marriage broke down and Robi left him, Robi instituted proceedings in the same primary court vide Nyamwigura Civil Case No. 64/66 against the appellant claiming that the child Mwita should be handed to her as she was not fathered by the appellant claiming that she married him while she was 6 months pregnant. Her claim was sustained by €hé primary court and the child Mwita was 'awarded to her.,.,In the m,an time Robi married the respàndent and was staying with ''tr±m'"Tt"wa in these circumstances when Nwita was awarded to his former wife. Robi that the appellant instituted these proceedings against the respondent claiming a refund of the total maintenance costs which he estimated at Shs. 4,000/= incurred by him in maintaining the child Mwita between from the time he was born until he separated from his mother0 The Primary Court found in his favour but reduced his claim / to the first 2 year6 of Nwita's life saying that in accordance with Wakurya customs such claims are normally limited to the first 2 years of the child's birth and fixed the amount of compensation at Shs. 8201=. From this decision the respondent Chokera Nyasibora appealed to the District Court at Tarime complaining among other things that he was not actually responsible for the child Mwita so as to make him liable for his welfare adding that the mere fact that he was living with Ivlwjta's mother could not be the basis for his liability. The District Court at Tarime upheld the respondent's contentions and held that the appellant did not prove any expenses that he incurred on Mwita and that as the time taken into account by the primary court the child Mwit'a was still sucking, the appellant could not have possibly incurred any expenses during that period. On these grounds the District Court allowed the appeal and set aside the orders of the primary court. From this decision the appellant appealed to this Court reiterating his belief that the respondent Chokera was primarily responsible for the maintenance of the child Mwita who he said was . WO Nwito's father and that the appellant was entitled to the refund which he claimed0 After a review of the evidence and the circumstances, I am satisfied .tFat.rthe District CQ1t!s; approach w;-As :th6 cdrrect one0 I will go farther and say. that the basis for the respondent's liability for Mwita's rnainterance was not es'tdblisheth It i- 'not clear whether the appellant sued the respondent because the res- pondent suhequen€l.y married. Mwi ta' s mother or ;because the pabl - lent believed and knew that the respondent was Mwita's putative father0. All we knois that when the appellant married .Mwita's mother she was 6 months pregnant so that according to the finding of the primary court in Civil Case No. 1 64/66 the appellant was not Mwita's father0 But we don't know who is Mwita's father0 It could have been the respondent and ujles ti.s was established beyond controversy the respondent's liability cannot be sustained0 If the appellant wished to claim a refund of.the expenses he incurred on the child Mwita he should, as the respondent rightly pointed out, have sued his former wife Robi for it was Robi who successfully claimed the child Mwita from him0 In th circumstances I do not think it is fair for the apdiIait€o pin responsibility on people who are in no way connected with the maintenance of Mwi ta0 For all thsc reasons I agree with the decision arrived at by the District Court and accordingly t dismiss this appeal the resuondent did not appear, I will make ro orders as to costs0 MUSOMA. 4th FEBRUARY, 1975 0 JUDGE