Nyamu v. Mahere (PC) Civ. App. 191-M-70; 30/4/71; Mnzavas Ag. J.

Nyamu v. Mahere (PC) Civ. App. 191-M-70; 30/4/71; Mnzavas Ag. J.

The appellant’s daughter petitioner a primary court for divorce against the respondent/husband. Divorce was refused but granted by the District Court on appeal. Respondent then filed a suit against the appellant’s mother claiming a refund of 31 head of cattle he had paid as dowry. The marriage had lasted for 17 years and had resulted in nine (9) children one of whom, a daughter, had got married and the respondent had received 40 head of cattle as dowry. The primary court ordered the refund of only half the original dowry. The appellant appealed but the district Court affirmed the decision of the lower court. On further appeal to the High Court he argued that the respondent had not lost anything as he had received 40 head of cattle on marriage of his daughter and therefore he should receive no refund whatsoever of the original dowry he had paid.

            Held: (1) “In this case, the daughter of the appellant repeatedly, and without any obvious reason, insisted on a divorce. This was granted her. She was therefore the guilty party under section 60 of Government Notice No. 279/1963 – THE LAW OF PERSONS. Section 58 of the Government Notice is to the effect that – “If the wife is the guilty party, she cannot obtain a divorce until her father has paid the bridewealth or, if he has not the means to pay what the court has ordered at once, the amount remaining becomes preferential debt.” ………… “Under the Law of Person (Government Notice 297/63) (which is applicable to North Mara district), the court has always to take into consideration the number of years of married life and the number of children born by  a defaulting wife to her husband when dealing with a suit for refund of dowry.” (2) “Because of the fact that the marriage subsisted for 17 years and there were nine children after it and the respondent received as dowry 40 head of cattle out of one, the lower court was right in ordering a refund of only half the dowry.” (3) The argument that the respondent is not entitled to any refund of the dowry would be right only if the evidence showed that the respondent was the guilty party. (4) Appeal dismissed.