[1927] EACA 10
The court held that the plaintiff, as the wali of the girl, is entitled to act as her guardian and recover custody. The defendant's claim for compensation for maintenance does not constitute a valid defence, as he voluntarily reared the girl with the understanding that she would eventually be returned to her wali...
Source-derived case information.
- Citation
- [1927] EACA 10
- Parties
- Plaintiff: Mbaruk bin Diwansap; Defendant: Hamsini bin Jumbe Kimemeta
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Civil Case No. 207 of 1927
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment_for_plaintiff
- Judges
- Pickering J
- Legal Topics
- Custody of Minor, Mohammedan Law, Wali Guardianship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbaruk bin Diwansap
Plaintiff
Hamsini bin Jumbe Kimemeta
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff, as wali, is entitled to custody of the marriageable girl under Mohammedan law.
- 2 Whether the defendant's claim for compensation for maintenance is a valid defence to the custody claim.
Ratio Decidendi
The court held that the plaintiff, as the wali of the girl, is entitled to act as her guardian and recover custody. The defendant's claim for compensation for maintenance does not constitute a valid defence, as he voluntarily reared the girl with the understanding that she would eventually be returned to her wali for marriage. The principles of Mohammedan law regarding guardianship and assent for marriage were determinative in granting custody to the plaintiff.
Court Disposition
judgment_for_plaintiff
Orders
- Hamsini bin Jumbe Kimemeta is ordered to hand over custody of the girl to Mbaruk bin Diwansap.
Full Case Text
Judgment text and source record
11 paragraphs
## ORIGINAL CIVIL.
## Before PICKERING, J.
## MBARUK BIN DIWANSAP $\boldsymbol{v}.$
## HAMSINI BIN JUMBE KIMEMETA. C. C. $207/1927$ .
Custody of marriageable girl-Mohammedan law.
Held: -That the wali of the girl is entitled to act as her guardian.'
About eight years before this suit was filed the plaintiff, a Mohammedan, handed over his granddaughter, then aged about five years, to the defendant at Nairobi, with instructions to take her to the plaintiff's home in Tanganyika. Defendant failed to do so, and the plaintiff brought this action to recover custody of the girl. The summons was served on the defendant who was residing at Changamwe, Mombasa.
The defendant did not appear.
ORDER.-Kariori is of marriageable age and cannot strictly be married without the assent of her wali. Hamsini's complaint is that he wants some return for maintaining her. That he cannot raise as a defence in this cause. He has reared her voluntarily knowing that when the girl grew up she would be taken from him for marriage.
The plaintiff as the wali of Karori is entitled to act as her guardian. Hamsini is ordered to hand over the girl to the plaintiff.
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