There is no evidence of such a remedy under customary

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There is no evidence of such a remedy under customary law. See s. 32(3) of Magistrates Courts Act and s. 9 of Judicature and Application Ordinance 1961. (2) There does not seem to be any recorded opinion or statement regarding the headman’s liability under customary law. There was ample evidence that prior to selling the pombe, respondent had twice been refused the right to sell at the place in question. Therefore the headman’s acts when he saw respondent selling the pombe must be considered to have been within the scope of his duties to see that laws and orders regarding pombe are carried out. 405. Adam Kharid v. Amina Rajabu, (Pc) Civ. App. 95-D-67, 28/8/68; Saidi J. The parties had lived together as husband and wife for eight years, although no bride price had been paid. The father was now claiming custody of the children born as a result of this union. It was admitted that among the Haya people there existed a form of marriage called “Kulehya” which was preceded by elopement. (Hans Cory and Hartnoll). Held: Non-payment of brideprice would not necessarily invalidate the mar- riage, nor would the absence of a marriage certificate (para. 86, Declaration of Marriage). The parties were married according to Haya customary law. Alterna- tively, there was a case of reputed marriage and so the children were legitimate. (Kiangi Sekanyonge v. Mnyika Msingi (Local Court Digest No. 202) and Langeni Yonaza v. Haika d/o Asakari (Local Courts Digest No. 202) and Langeni Yonaza v. Haika d/o Asakari (Local Courts Digest No. 204). Although appellant was the
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lawful father of the children, their welfare demand that they remain with the mother. 406. Omari s/o Kanyonge v. Oure Oruchi (PC) Civ. App. 128-M-68, 23/7/68, Sea- ton J. Respondent sued appellant in the primary court for Shs. 600/- compensation for adultery. Appellant claimed in defence that he was married to the woman, and produced evidence that he had paid the bride-wealth, with the result that respon- dent’s claim failed. On appeal to the district court, the claim succeeded, mainly on the evidence of the woman involved who testified that she was married to respondent, and never to appellant and that her father forced her to stay with ap- pellant because he had promised to pay more cattle. Held: (1) Since the parties are Luo and resident within the jurisdiction of the North Mara District Council, the Luo law of persons were to be construed strictly, there could be no customary marriage without a marriage certificate. However a footnote to the chapter states that it is not intended to abolish any custom of contracting marriage. There is sufficient evidence that appellant was married to the woman by Luo Custom. Therefore no question of compensation arises. Appeal allowed. ( 1968)H.C.D . - 159 – 407. Ruzebe Sweya v. Jacobo Kitale (PC) Civ. App. 116-M-68, 19/8/68.
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  • Fall '17
  • Dean Majamba

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