Sitihege v. Jaseli (PC) Civ. App. 162-D-70; Mwakasendo Ag. J.

Sitihege v. Jaseli (PC) Civ. App. 162-D-70; Mwakasendo Ag. J.

The appellant/wife filed a claim against the respondent/husband claiming: (a) custody of one child of the marriage; and (b) compensation of two head of cattle in respect of services she rendered as wife. When the parties eloped about five years ago, the appellant had got married to another man for a few months. After living together for sometime, appellant and respondent decided to get married. The respondent paid Shs. 580/- to the appellant’s father as bride price but it was not clear whether the sum was a down payment or the whole brideprice. In October 1969 when the appellant went home for her grandmother’s funeral, she never came back. Her father wrote to the respondent informing him that appellant would not go back to him unless he (the respondent) refunded the six head of cattle which the appellant’s father had to repay to the first husband of the appellant. The appellant’s father then paid back to the respondent the Shs. 580/- which the later had paid. The Appellant’s claim failed in the courts below. She appealed.

Held: (1) There is no merit in the claim for compensation for services. “It is hard to conceive of a more blatant and despicable form of exploitation and appellant must be fully aware that no one can be expected to compensate her for having feely and of her own accord married the respondent. Least of all can she expect respondent to compensate her for performing he wifely duties.” (2) “………. The only ground on which her claim could have been founded is on a claim for maintenance. However, even on this ground she was bound to fail ……….. Paragraph 74 of that order (Customary law (Restatement) Order 1963) preclude the courts from ordering payment of maintenance to a spouse who has been found guilty of any matrimonial offence as prescribed under that Order. ….. Appellants actions in deliberately breaking up the marriage fall within the context of paragraph 74.” (3) “I have no doubt that the respondent, who has a steady job, will be a better custodian to the child than her mother. As in all custody cases, the first consideration that courts must attend to is the welfare of the child in question.”  (4) Appeal dismissed.