Sakaya v. Kasova (PC) Civ. App. 30-A-69; 13/4/70; Platt J.

 Sakaya  v.  Kasova  (PC) Civ. App. 30-A-69; 13/4/70; Platt   J.

The respondent Kasova Honaulu married the woman Senea d/o Ngilisho. The marriage was not a success because Kasova infected Seneu with syphilis and only one of their many children lived. Seneu then formed an association with Sakaya the appellant. She was cured of her disease and had two children with Sakaya.  At the beginning of this association Kasova claimed Seneu at the Primary Court.  She was ordered to return to Kasova, but she later returned to akaya. No proper marriage ceremony was carried out between Sakaya and Seneu and this gave colour to Kasova’s claim to Seneu and the two children born during Seneu’s association with Sakaya. Seneu’s father agreed that Kasova’s marriage still existed to Seneu. Therefore the woman and two illegitimate children belonged to Kasova and not Sakaya. The Primary Court however decided that the marriage did not continue to exist because the Respondent had abandoned his wife; and he had not taken proper   steps to reclaim her over so many years that it must be considered that he was waiting for the time that he would claim from Sakaya. The latter had properly cared for Seneu and their children. The assessors were equally clear that Kasova had lost his right to the children. The District Court reversed the decision.

            Held:  (1) “With respect I find myself in agreement with the unanimous views of the Primary Court.  Seneu did use the right to leave Kasova because of the disease with which he had infected her. I accept the Primary Court’s view of the evidence that Kasova did abandon his wife. Nor could he be entitled to any repayment of bride price because he had children with Seneu and one was still alive. It may be that Sakaya has not yet arrived at the stage of being the fully rightful claimant of the children because he has not been recognized as the lawful husband of Seneu, or alternatively     the children have not been adopted. But if the marriage between Kasova and Seneu was properly deemed to have been abandoned    that the result would be that the children are illegitimate and pass under the hand of Seneu’s father until such time as Sakaya legitimate his position.”  (2)  “I should not however make an order that Sekaya have the right to the children until his position is legitimized.” (3)  Appeal allowed.