19790621 TZHC Mwanza

w • IN THE HIGH COURT OF TANZANIA AT. MWANZA (PC) CIVIL APPEAL NO. 162 OF 1978 (rrom the decision of the District Court of Musoma District at Musoma in Civil Appeal No. 75 of 1978) 1" TT 'S mh T1VAC 00 00000000000000000000000000000000 APPELLANT versus 1AHUNDA KITAMOKA ..,.000.,....00.o....e..e...o RESPONDENT CLIM: Eride price0 JUDGEMENT KATITI,J 0 , - Ngoreme Primary Court inMusoma District, witnessed liwita Nyasi the appellant, filing a suit for a refund of bride price, against the Respondent Mahunda Kitamok. The Primary Court unarimously came to the view, that the appellant was entitled to a refund of bride price as claimed, and dissatisfied, the respondent: successfully appealed to the District Court, and hence this appeal by the appellant. The facts on which the case stands are that, the respondent gave his daughter in marriage to the appellant, under customary rites upon the latter's payment of 28 heads of cattle, and 31 heads of goats. The record is, either by design, or accident quiet as to when this marriage was natively officiated. But the seine evidence does reveal without shyness, that the marriage suffered marital difficulties, and as the wife is dead, we only know one side, that, that truancy on the part of the woman dominated the marriage scene. We also know, as equally appreciated by the lower courts that the husband, was always on his feet, looki'g for andbringing his wife home, as and when she took to truancy0 This had become so routine, that, it was while she Was aça3n on her truant expeditions, that she met her death. It was after her death that, the appellant brought action to demanding a refund of bride price, he had paid. The Primary court allowed the claim, and I have observed, the claim was so allowed, because they condemned the dead wife unheard. The District Court, upset the Primary Court verdict by applying para 80 of the Law of Persons Government Notice No. 279 of 1963 - that provides, that bride wealth cannot be returnecL whether the wife has born children or not, in case she dies. It must be conceded, that, even assumming the appellants version of his marriage experience with his late wife, is true, she was still his iife, at the time She died, in so long as he could not screw same courage may be because he loved her so much to divorce her; for what he 0 may have thought were matrimonial misconducts. The question should therefore now be, whether upon the death of his wife, he should be allowed a refund of bride price, of course, now merely because of her death. Generally speaking, a refund of bride price, total or partial is ably entertained after divorce the antecent of which provide factors - i.e. number of children of marriage, duration of marriage, guilty party responsible for the break down of marriage, - that are taken ' £ as a basis for the assessment of a refundable bride price 0 But where death has made the continuation of the said marrige impossible, to resort to the above factors, is to enter into the delusive realm of speculation0 And indeed, death as a factor of life, is not subject to any individual's jurisdiction to make the independent visitation of the same on anybody, approtionable to any human being0 The District Court was tierefore right in applying the provisions in paragraph 80A of the law of persons G.N. 279 of 1963, - that upon the death of a wife, bride—price already paid is not refundable. This appeal must therefore be dismissed, and it is with costs. E. W. KATITI JUDGE HIGH9JRT MW.ANZA : 21stLrune, 1979.