19700615 TZHC Mwanza

IN TPID :IIc:I ')UItT ci 1-IC tS,ri TA!ZNL' (In the District Registry.) AT MWANZA. APPELLATE JURISDICTION. (pc) CIVIL APPEAL NO.17 OF 1971. (From the decision of theDistrictCour -t of North M'ára District at Tarime in Civil Appeal No.234 of 1969. Original Nyaburongo Primary Court Civil Case No.99 of 1969.) OYOGO s/o OBUORA. • . . . ... . . . . . APPBLLANT (Original Defendant.) vs. CISILIA /o OBAMBO. . . . . . . . . . . . .RESPONDENT(Originàl Plaintiff.) JUDGMBNT. MNZAVAS, AG.J. The respondent sued the appellant in the primary court for custody of a child, one Ajwan, The respondent lost. She appealed to the district 7., court where she won. The appellant now appeals to this Court. From the ovid e the appellant was legally married to the respondan -t / and lived with her f about six years after which the rnarriages broken. 1 ' It is not cloak from the records when was the date of the marriage. The appellant in his 6vidence says the marriage was celebrated on 28.11.63. The respondent on the other hand says that the marriage took place on 11.1.64. It is however hot in dispute that while the marriage was still subsisting Ajwang, a aby-gir1, was born. After the break of the marriage the respondent sued the appellant for custody of the child alleging that she was already pregnknt by another man when she got married to the appellant. Her mother and her school teacher confirmed her story before the primary court. Hr argument was therefore to the effect that the appellant could not have possibly been the natural father of Ajwang as she was already pregnant when she got married to him. The appellant bn the other hand told the primary court that the respondent had been hs girl friend since 1962 and that he used to have sexual intercourse with herbefore they got married in November 1963. According to his testimony he had intercourse with her for the first time in June 1962 and agai i in August 1962 at Adroniko's place. The learned di -trict magistrate in allowing the appeal said - "the evidence of the teacher and the headman leaves no doub 1t that the appellant became pregnant when still a pupil. This was then before the marriage to the responcint. The respondent has not proved that he was theperson who pregnated the appellant so that he is nbt the father." It is true that the mbther, the teacher and the headman gave evidence that the respondent was prgnant while still schooling and before she got married to the appellant. But there was also evidence that the appellant had been having sexual intercoirse with the respondent while sh was stil4Jp. school and before he got married to her. Although this does!necessariItht the appellant is the person whofathered the child during this time of extra- marital sexual intercurse, but he could have been the father. This possibility is even mre probable taking into account the fact that the respondent did not mention to the court the person she alleged to be the natural father of the child. squally it is bxtremely surprising to note that neither the respondent nor her parents drew to the attention of the appellant that the respondent was pregnant by anothr men when the marriage was celebrated. The child whose status is in issue is a member of the North Mara District which is covred by the Local Customary Law (Declaration) Order -' - - L —2- Government Notice N0L279 of 1963 as per G.N. No.604/1963-. In accordance with section 175 of G.N. No.279 of 1963 children born in wedlock belong to the father. There is no dispute that Ljwang wasborn while the marriage was still in existence. This being the position Ajwang is, in law, the child ofOY0G0 OBUORO, the appellant. In the event ihe decision of the district court is hereby set aside. The primary äourt decision is fully supported by the evidence and is accordingly rstored. The appellantis to have his costs. N. Mwanza, Aot1ng Judge. 15-6-1970.