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Sambwe Mwakilaba v. Andrew Mwakamsale, (LC) Civ. App. 75-D-65; 7/4/67; Saidi, J



Sambwe Mwakilaba v. Andrew Mwakamsale, (LC) Civ. App. 75-D-65; 7/4/67; Saidi, J

In 1939, appellant married a woman who was six months pregnant by another man. He brought up the child, a girl, as his own daughter. When she was married, he received the bride price paid by her husband. In 1964, after she had born three children, her maternal uncle brought an action in Rugwe District for custody of her under the Local Customary Law (Declaration ) Order in 1963 (Government Notice No. 279 of 1963, extended to Rungwe District by Government Notice No. 250 of 1964). Section 178-180 of that Order provide that children not born in wedlock “belong to their maternal family” and that “if the child is a girl her bride wealth is received by her mother’s father or his heir.”

            Held: (1) “(1) Illegitimate children of unknown fathers belong to the maternal family under customary law, “ and an illegitimate daughter’s bride price. “is taken by the mother’s father or his heirs.” (2) However, since this claim was made after the child was fully grown, married and with three children, and since the uncle had contributed nothing to her upbringing,  “it was too late (for him) to lodge his claim over this woman…” He should have claimed for custody “when she was five years old.” (3) Similarly, “the appellant who brought her up as his own daughter and arranged for the marriage should take the bride price to the exclusion of any other person who did not contribute anything …..” Appeal allowed.

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