Loijurusi v. Ndiinga (PC) Civ. App. 1-A-71; 14/8/71. Kwikima, Ag. J.

 

Loijurusi v. Ndiinga (PC) Civ. App. 1-A-71; 14/8/71. Kwikima, Ag. J.

The appellant was the respondent’s brother in law. Before marrying the respondent’s sister the appellant spent six years working for her father in accordance with spent six years working for her father in accordance with Masai custom. The wife was given to him in consideration of his service to he father. According to Masai custom the appellant was obligated to pay a female calf for the first year of service, a male calf on the next year and so on. Alternatively he could opt to marry

            his master’s daughter by paying in addition four heads of cattle, four tins of honey and other incidental gifts, snuff, clothes etc. if he so wished.

It was established at the hearing that the appellant did not make such payments due to the untimely death of his father in law. He and his wife lived as husband and wife for six years after the death of her father. He brother then took her and the children away in order to exact payment of bride price from her husband. Judgment was given in favour of the appellant on the advice of the assessors. On appeal this was reversed on the ground that the appellant had not paid the required bride price in accordance with the proven Masai custom.

Held: (1) “With great respect to the learned District Magistrate, the problem was dealt with in too summary manner to satisfy the cause of justice. In this case he was dealing with the welfare of the appellant, his wife and their offspring. The spouses had cohabited in harmony for six years. Providence had graced them with the offspring. So closely knit was the life and the future of their offspring that no one, not even the wife’s brother, had business to interfere with the settled life together. It is against public policy to interfere with the family which is the fabric of the entire society and Courts of Law all over the world are much loathed to allow such interference. The Anglo Saxon Common Law, to which our Legal System is heavily indebted, accords particular regard to the sanctity of marriage. On that principle this court has held that even under customary aw, prolonged cohabitation raises a presumption of marriage unless there are circumstances indicating the contrary (Fatuma Amani vs. Rashidi Athumani, 1967 H. C. D. 173). There is another common law rule which stipulates that a subsisting marriage which has endured for sometime cannot be declared null or void simply because it was not properly celebrated. The payment of bride price is only one of the conditions of the celebration on a marriage. Non payment of bride price cannot be fatal to a long enduring marriage. And any arrears thereof ca be recovered by way of a civil suit and not by the withdraw of the bride. If there is any tribe with such custom, it is time our courts put a stop to such custom. Indeed the recent law of marriage has expressly laid down that non-payment of bride price cannot be fatal to the marriage. In this case there was no evidence of any Masai custom to support the respondent’s highhandedness. His action was clearly inequitable and contrary to public policy.” (2) Appeal allowed.