Kidianye v. Kalana (PC) Civ. App. 110-A-68; 6/10/71; Kwikima Ag. J.

Kidianye v. Kalana (PC) Civ. App. 110-A-68; 6/10/71; Kwikima Ag. J.

Respondent brought a suit against the appellant to recover his wife with whom the appellant was living in adulterous concubinage and the children. The trial magistrate held that according to Masai custom all the children, whether born by the appellant or not, should return with their mother to her lawful husband the respondent. He also made an order for the respondent to compensate the adulterer. The district magistrate set aside the order for compensation.

Held: (1) “The learned District Magistrate who determined the respondent’s appeal rightly held the trial court to be in error. The assessors who assisted him to hear the appeal advised him that the original decision was not in accordance with Masai custom.” (2) “Even if such was not the case, the respondent’s appeal would still hold good on the principle that it is against public policy and good on the principle that it is against public policy and good morals to order a cuckold to compensate his adulterer. This principle would nullify any Masai custom supposing it was there.” (3) Appeal dismissed.