19711012 TZHC Mwanza3

1' L7 IN TEE lEG-H COURT 0 JdTZLNIE Ai MTAi A Appellatc Jurisdiction # c) -i-• (pc) CIVIL APPEAL NO, 58 OF 1970 (From theeci sion of the District Court of North Maya at Tarjue in Ci - dl AppesJ. No. 269 of 1969 before 0. A. Lwolen(ora Eeq., District IvIad;istrate - Orina1 Civil Csc No. 152 of 1969 of Nyaurono primary court). •111AITMIRA KISIR * . . . . . . . . . . . . . . . . . . . . . ,APPEILLANT versus - - • NYINEBE MiHEND • 1 I 1 I I I I I I I • U I • * • t • I • • •iLJJL) .11' LLL'LL J1JDGMEN 1-KThDY, J. This is an appeal cidsinst two juduents of the District Court of North Mara sit inr at Tarino. In one case s the appellant was ordered to refini 45 head 3 of cattle allecd as haind been paid by the respondent when the latte was married to the appellant' s daairht cr, *- In the other case s the appellant was ordered to pay 10 hecds of ct because he did not L vo the respondent his dauhter in lieu of ti-ic ht er The app'ellant was represented by the learned counsel Mr. Matenba. The respondent appeared in person, Both c1ias are based on the customary law of Sinbiti tribe which lives in.Tarjub District. There was evidence, which the trial court accepted, th3 ofect that, tiu'owjh enerciso of customary abduction the respondent narriad the dauter of the appellant way back in-1965, They . had a dcuhter of marriae- She is called Sofia d/o Nyokebi. In 1967, their ncree broke up after

incessant quarrels and the appellant' S c1euhter left the house of respondent Exactly whore she went after the separation is intter of dispute said when she lcft she took with her .• their dcuhtor Sfia' The girl was then two years old The respondent then successfuhiy sued for divorce, and the appellant vms ordered to refund 45 heads of cattle which were paid to hin. This- was the arount which the respondent had paid oriinaily as bridewealth As the respondent I did not lmow where hi-S dau:hter was p he sued the appellant for restitution of his dau::hte or paynont of the 10 heads of cattle in lieu thereof.- He was awerded the customary 10 heads of cettlef The appellant centended that bath judaents were not only unjust to him but also unsound in law. It eppeared Uuin the heaxin of this appeal that the respondent Irnew where his ex-wkfo and daihter were but the appellant Cd not. This would be an inportaL factor when I cie to consider the merits of the appeal a ainst the ji4i, nc-nt. of 10 heads of cattle. - The evience showed that thc appellant' s dauhter left the house o: the re ent j but the evidence is not claar as to who was duilty / 00*2 or p ztly ,ui ty of a break up d the ir1o., TJ witnesses sirV takod of 'he inossab rol, but they did not try to lay b1cc on either the respondent or his ox-wife althouh t one stoc thu coil leader, I.Ii;crc W:iburh (P.\'i.l) ;ested that the

fault could have boon that of the rospondon,.but his evidence was contradicted by that of hofyoka. Iaonde The issue then was inconclusive and in the circunstancos it is only fair, that the bland for the break up of the riarriu;e should be apportioned o - enly A1thouh the' respondent was aatitled to a divorce for doscrtion'undor para':rph 134 of the Customary Law Declaration (Law of Persons) GIL 279/63, the assosstnt of returnable bridevica1h is a uattcr of discretion of the court and the c1c-:roe of uilt ist11c detoxTfl.- na.nt factor (see parorrep1a 54 of G,N 279/63)' It appears that thu trial cot d the appellate court did not direct their minds on this point and it cannot, therefore, be sald that they exercised their discretion judfcilly. In addition to that, there was a child of narriae and the respondat hac beon living with the appellant 1 s dauhter for not less than two years' cannot be just for the respondent to have lived with the appellant's duhter for that peod and to bcet a child with her, and than recover ie ifll bridepri.co upon divorco It is to avoid this hin of injus ice 4at poxraphs 53 54 and 55 of. the Ctomaxy Law Declara- tion (Law of liersons) G,N. 279/63 were nacted It is also for a. similar reason that t1h6s Court finds that the fact that there was a child of o'rii.ao is reason onou;h for not gfantinr; full restition of brideweelth In my view, -I kind that

the order for a refund of all the bridcwealth is unjustified. ,n the circuL1stcnces the appellant should only at 22 heads of cattle'. If the apdila.nt had already paid bakk the 45 heads- of c0tt10 the respondent should return 23 of thom to the appeflent The sec nd part of the appeal is difficult and has causcd no d;reat anxiety. The Lcarnoc1 counsel ared. that the custom ws not onlY oainst natural justic? but also ropurnant I a not ready to hold in that manner as vibct is inv1vbd 'is a delicate piece of customary law which is not necesoorily ball. It is common knowlcd:e that homicide was dealt with by payment of compensation to the parents of the victim. A similar tbin seems to be iolved in this case',. as it is only payable whetl' party is unable to r1turi, the child In this case s the respondont sued for his dau -1rter, but ibecause the appellant appeared not to have imowa where his Ccu;htor caidaranddau;hter were, he sued for 10 heads of cattle in the alternative. The aitleuen assessors had no doubt that the rospondit was p in the circumstances, onti.tled to the 10 hads of' cattle and the ta1 co it awaided it' I cannot sy thaheir decision was wron on the f4cts as thoy were before thou As I have said the respondent now knows whorl his ox.-wifo and dauhtor arc cad I see no reason why ho siculd not ue her instead of suiiy, a person who not only did not f. _-r - - -- -

-.--- have the custody of tIi5 child but did not even Imow there the child and its L1otiIer we e. In the circunstances, I do not have to coiiidor whether upon payisent f tile custo:iary law oupensation the father would 1059 cli his pt ernal ic;hts over the child, 1,,Lr o Mat enba felt stro%1y about this. \T c ot, t1jz ioi that the respondent, a naturol f ithor, shoulo, not be deprived o his rihtsover the dahtve I Oxjress no opinion on thio.. The assessors thouselves oxpressod no opinion on this. I find, therefors, ltiiour1a the ustoliary law of Siribiti eilowô such paynent of coispcnsation for this reasos stated, this c1an caot be ujhold now The respoadant can sue his c-i-wife or whoever had custody of his deax dauhtcr, and the prianry court would detomino this issue in the best interest and welfare of the child. The, apiellant.is allowed his costs in full. Dcliv d in Court on the )th day of Octpber, 15716 E1..ndy) 3DDGE

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