Chono v. Gulaniwa (PC) Civ. App. 224-M-70; 19/7/71; El-Kindy J.

Chono v. Gulaniwa (PC) Civ. App. 224-M-70; 19/7/71; El-Kindy J.

The respondent sued the appellant in the primary court to recover 8 goats, a bicycle and 5 tins of maize he had given the latter under and out of court settlement. The fact out of which the case arose are as follows; the appellant’s paternal uncle (Baba Mkubwa0 was married to Wande who lived in the homestead with the appellant and her husband. In December 1968, Wande’s husband went to Kahama for some business and she was left under the charge of the appellant who, at her request, permitted her to visit her parents. During this visit, he father (Ibele) found her in circumstances which suggested that she had committed adultery with the respondent. The respondent and Wande were taken tot eh cell leader of the respondent where they spent the rest of the night. On the following morning the elders gathered and the appellant was sent for. Wande confessed to committing adultery with the respondent who agreed to pay compensation to the appellant for the alleged matrimonial offence. The amount agreed upon was ten heads of cattle. Such being the case the appellant agreed not to sue the respondent in a court of law and the latter made some advance payments. These he sought to recover in the action. His claim was dismissed by the primary court magistrate who refused to follow the assessors whose view was that the properties were obtained illegally and therefore they should be returned to the respondent. On appeal to the District Court the respondent was successful, the District magistrate holding that a father could not “surprise his daughter to amount to adultery” contrary to Para 111 of G. N. 273/1963. The appellant appealed to the High Court.

            Held: (1) “The assessors’ view was mistaken here was nothing illegal about arbitration or reconciliation proceedings as the law did not prevent them. Such process of dispute settlement has always been known under customary law. This process has now been given legal form the by the amendment to the Magistrates Courts Act, 1963 Cap. 573 by way of amendment when a new section 15A was introduced into the main act by the Magistrates Courts (Amendment) Act, 1969, Act No. 18 of 1969. The trial magistrate was, therefore, right in declining to follow the unanimous opinion of the gentlemen assessors who apparently misdirected themselves on the legal position regarding arbitration ……. This decision was delivered before the majority vote rule came into effect by the amendment of section 8 of the Magistrate’s Courts act, Cap. 537 as amended by section 2 of the Magistrates Courts (Amendment) Act, 1969 above quoted.” (2) “I would now dispose of the allegation that Wande’s father, Ibele, could not “surprise” his own daughter in the act of adultery as Rule 111 of G. N. 279/63 did not permit this. This rule reads:-

“111. if the husband is absent any of his close male

relatives has authority of surprising the wife, and if the

husband has no male relative the man whom he has appointed

A guardian of his wife before his journey has the authority. These have authority to claim authority. These have authority to claim damages on behalf of the absent.”

The Swahili version of the Rule reads:-

“Kama mume hayupo nduguye wa kiume aliye karibu anaweza kumfumania yule mke, na kama mume hana ndugu wa kiume basi yule mtu aliyemchagua kumtunza mkewe kabla ya kuondoka ndiye mwenye mamlaka. Hao wenye mamlaka wanayo haki ya kudai fidia badala ya mume ambaye hayupo.”

The issue then is whether the learned appellate magistrate was correct in holding as he did in respect of Ibele, who was the principal witness in this suit. Before I come to this consideration, it is noted that normally it is the husband who is to “surprise” his life as it can be seen from Rule 110 of the same rules. It is only when he is not present that the persons described in Rule 111 would be entitled to act. There is no doubt that the appellant was a competent person to bring this suit, as he was then the guardian of Wande, and this was not a mater of dispute. But leaner appellate magistrate’s finding that Ibele could not surprise his daughter, as he was not one of the person indicated in Rule 111, raises the question of whether the learned trial magistrate, properly and correctly, appreciated the meaning of “has authority of surprising the wife,…… or in its Swahili form “anaweza kumfumania yule mke, ……” The Rule is not without its difficulty was it is open to a number of interpretations as the language used is legally unknown. However, this is not a sufficient reason for not attempting a definition as that would amount to avoid the duty of the court. It seems to me that the phrase, above-quoted, has a technical meaning. It does not just mean seeing or finding the wife in the act of adultery with another man. In my view, it is part of its meaning that it refers to the right of action as well. In other words, the right of action for adultery lies with the persons named in Rules 110 and 11. Such persons could also have been the people who found the wife in the act of adultery or be in the position of the appellant. In this sense, therefore, Ibele who was not a guardian could not bring the charge of adultery against his daughter or the respondent. If the learned appellate magistrate meant this, then he was right in this decision as the right of action is clearly not that of Ibele. But Ibele was a witness to an incident and it cannot be said that he was not entitled to see his daughter in the act of adultery. Like any other person, he was a witness and therefore he was entitled to bring it to the notice of the elders and the appellant as he did although it was a matter of shame that his daughter was doing what she was not supposed to do as a married woman, and subsequently to give evidence. In my view, his evidence cannot be excluded just for this reason and therefore it was properly before the court.” (3) Appeal allowed and the primary Court’s judgment restored.