1967 hcd 128 433 amani chogo chacha v rioa nyamtara

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( 1967) H.C.D. - 128 – 433. Amani Chogo Chacha v. Rioa Nyamtara, (PC) Civ. App. 115-M-66, 24/10/67, Mustafa J. Chogo and his wife were divorced in 1947. Chogo was awarded the return of the ten cattle he had paid as bride wealth, even thought two children had been born during the marriage. The basis for the divorce was adultery and excessive drink- ing on the part of the wife. Riobo, the brother of the former wife of Chogo brought this action for the return of the ten cattle claiming that because children were
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born, Chogo should not have had the bride wealth returned to him. The primary court held that his action was time-barred, being filed in 1965, eighteen years af- ter the divorce. The district court, noting that Chogo, who was a local chief, had presided over the court that had granted the divorce, declared the divorce to be illegally obtained and void, because Chogo had been an interested party and should not have presided over the court. This meant that Chogo and his wife were still legally married, so Chogo never had a claim for the return of the cattle, so Chogo never had a claim for the return of the cattle, and they should be re- turned to Riobo. Held: (1) The district court erred in ignoring the judgment of divorce ob- tained by Chogo, notwithstanding the method by which it was obtained. A judg- ment remains in force until upset by a superior court, and the earlier judgment had never been appealed. (2) The principle that a husband cannot recover bride wealth if there have been children born during the marriage applies only when there are no grounds for the divorce offered by either party. If the divorce is based on the wife’s wrongdoing the court may, in its discretion, order return of some or all of the bride wealth to the husband despite the fact that there were children born during the marriage. (3) This action was time-barred. It is against public policy to allow matters which have been decided to be re-opened many years later, Chogo need not return the ten cattle. 434. Chibaya s/o Mbuyape v. James s/o Mlewa , (PC) Civ. App. 104-D-67, 20/11/67, Hamlyn J. Plaintiff sued defendant in Primary Court for cattle and goats in respect of bride price. The action was governed by Gogo customary law, and the judgment for defendant was based upon the opinion of Gogo assessors as to this law. On ap- peal to the District Court, the magistrate, sitting without assessors, reversed the judgment and entered judgment for plaintiff. Held: “Customary law ……. Is the law originating in the customs of a par- ticular locality or tribe and (unless of course such law is contrary to the general law of the country or is immoral or otherwise objectionable) remains the law of
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that locality until it becomes changed by general usage of the applied law. It is not for the courts to reasons.” As the judgment of the primary court was based on the opinion of persons well versed in Gogo customary law, it was reinstated.
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  • Fall '17
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