HAMISI GOROGORO v. ASHA MERAGANE (1977) LRT No. 41
Mfalila, J. held that where a transfer of one’s rights over his dota is valid under customary law, such transfer includes the right of the transferee to receive the bride price on the marriage of the dota.
Obiter: Even if Amina (the dota) had been illegitimate the respondent would have had a claim against the appellant. This is because I think the proper people to have made this claim would have been her male relatives; that is to say; the uncles of her child or her own father (Amina’s grandfather). I do not think the respondent could personally stand up and claim Amina’s bride price. p. 183 of LRT.
Justice Mfalila is saying that (under customary law) he does not think that Asha (the mother of the dota) is the right person to claim for and get paid the bride price payment for her own daughter. PATRIARCHY AT ITS BEST!
MWAMBOPE MWAITENDA v LAZARO MWAKANJUKI (1976) LRT 60, Nyalali, Ag. J. – 4/6/1975.
1. The word ‘Ndugu’ in clauses 62 and 64 of the Customary Law [Declaration] Order 1963 must be construed in such wider sense as to keep it within the extended family structure of African Communities to which the declaration relates.
2. The question whether a particular relative qualified to be ‘ndugu’ of the deceased for the purpose of wife-inheritance is a matter of customary law of the community concerned.
3. Where the customary law [Declaration] Order is silent on a question the answer must be found in the undeclared customary law olf the Wanyakyusa.
4. On the evidence given at the trial before the Primary Court, it would appear that the stepson of a widow for purposes of inheriting that widow as a wife, is a ‘ndugu’ of his late father.
5. The customary law [declaration] order being subject to any relevant Act of Parliament is subject to the LMA 1971.
6. S.25(d) of the LMA recognizes marriages contracted according to customary rights but section 14 (3) prohibits any person from marrying the former spouse of his or her parent.
7. As no evidence was adduced at the trial to show the exact date of the alleged marriage, the appellant failed to discharge the burden of proving that the marriage took place before the lst May 1971 when the LMA came into force. APPEAL DISMISSED.
This case translated Clause 62 of GN 279/63 (28/6/1963) at p.237 of the casebook as follows:
“The widow is asked whether she wishes to be taken over by a kinsman of the deceased. If she does not so wish, bride price does not become refundable and she is free to go and live with her own kinsmen”
Clause 64 – p. 238 of the casebook:
If the widow agrees to live as a wife of one of the kinsmen of the deceased, and the family council approves, she becomes the lawful wife of that kinsman of the deceased.
Mbaruka v. Chimonyogo (PC) [1971] HCD 406
Mwakasendo, Ag. J.
Where a mge has lasted for a very long time (in this case over 22 years and 2 issues) the chances are that the return of bride price swill be ordered in inverse proportion to the number of hears that the marriage has lasted. The longer the mge subsists the dimmer will be the prospects for the claimant, whether he is the innocent party or not, succeeding in getting a refund of the bride price that he had paid at the inception of the mge. The reasons why this should be so are obvious. The original parties to the transaction may have died or, even if they have not died, their fortunes may have adversely changed in the intervening period, so much so that is may be unconscionable to order any refund of bride price. If these propositions are not acceptable, as they are bound to by the tremulous and conservative part of our people, I cannot see what would stop a grand old man of 80 claiming the return of bride price paid 50 years before when he married his divorced 66 year old wife. I have deliberately chosen this extreme case to demonstrate the absurdity to which an untrammeled application of customary rules can lead.
3. Speaking for myself, I believe that customary rules are like the reinless wild horse which only the expert horseman can mount and control but left to the uninitiated it can do deadly harm. I believe too that it is the duty of the courts at this momentous period of our history to assist the growth and promotion of equitable customary rules. We would be failing totally in this respect if we were to abide, without reflection or commonsense, by the unchanging and changeless traditions of the past as if they were priceless medieval relics.
4. I have very little doubt in my own mind that there could be no justification whatsoever for ordering the respondent to refund to the appellant the remainder of the bride price. The appellant should in fact count himself lucky that he got the refund of as many as 12 head of cattle, to which, with respect, I do not think he was entitled…
Warioba Wanyangi v. Romara Romara [1977] LRT 7. - MAGANGA, Ag. J. 21/6/1975.
[The Late Judge Maganga thought that a Kuria Custimary rule which holds a father liable for the torts of his adult son repugnant to reason and natural justice.]
A father is not vicariously liable for the tortuous acts of his child who is not a minor. Appeal dismissed.
ALI ZANDA v. Mohamed Ngago (1973) LRT 16 – Mfalila, Ag. J. , p 67 casebook.
Circumstances in which PCs may exercise civil jurisdiction under section 14 (1) (a) (i) of the MCA, i.e. where customary law is applicable. [The MCA 1984 has only s 14 (1)]
1. Such matters must between members of a community in which rules of customary law on the subject matter are established and accepted and if the parties come from different communities the 2 communities must have similar provisions on the matter.
(ii) If the matter relates to status or succession, the person involved must have belonged to a community in which rules of customary law relevant to the matter are established and accepted;
(iii) By the nature of the dispute it is appropriate that the matter be decided in accordance with customary law except where there are strong indications to the contrary.
No comments:
Post a Comment