Nyakichawa Ruge vs Muhono Masisi (PC. Civil Appeal No. 141 of 1984) [1985] TZHC 474 (10 December 1985)
Judgment
IN THE HIcH COURT OF TANZANIA • I " AT MWANZA. (Pc) CIVIL APPEAL NO. 141 OF 1984 (From 1deciioxi.of the District CortOSèGeti in Givil Appeal No. 45 of 1984) (original:'civil Case No. '116. of 1984 of Kyaná Primary Court). NYAKICHA 1 dA PUGE • APPELLANT VRS. MUHONO MASISI .............. RESPONDENT JWJGNT MUNYERA J. •. The appe11On sued - 1e respondent before Kenyana Primary Court. he soughtto recover 38 head of cattle (and other things) bridewealth. She alleged that on 28/12/77 she had taken the respondent's daughter as a mkamwana and paid the bridewealth claimad. The girl decided to go away so she claimed a refund. In his defence the respondent admitted to have received the bridewealth claimed but resisted a full refund because his daughter stayed with the appellant for eight (8) years working for her. He asked the trial Court to 'take that into account and disallow some cattl:.. The trial Court unanimously ruled that 'ten (10) head of cattle should be disallowed for the perioth The appellant sent her appeal to the District Court, insisting she should be refunded her bridewealth in full. Her appeal was dismissed and the decision of the trial Court upheld. She appealed further to this Court. Her attitude is the same, that she shoulc get a full refund. I find there is no despute over the bridewealth the respondent had i received, it was 38 head of cattle. Also it is agreed that the girl stayc years. The despute is over the refund. The appellant insisted on a full ref and while the respondent sued for a reduction and the lower co±'ts agreed- with him. In her memorandum of appeal (para 4) she raised a legal point: "... Wala hakukuwana ndoa yeyote kati yangu na binti wa mdaiwa, mahari yangu yasingeweza kupanguzwa What she means is that Since there was no marriage, the rules of bride-i wealth rufund embodied in G. N. 279/63 should not have been invoked as they only apply to a valid marriage. I have considered this point but cannot be pursuaded by it. Because of the appellant's intrigues the res'ondent's daughter was paruaded to go and live with her as a mkamwana. She stayed there for 8 years she missed an appertunity of sontrating a proper a- rriage. Moreover the girl was working for the apeIlant, this being one j of the incidences of this mkamwana system. It would therefore have ;orked ..................
P4 injustice if a full refund wa, ordered. I can only accept the appellant'a argument that there was no relatiorship between the 8 years period and the 10 head rethictioti. . It sho'ild.'Riv ie been one cow per annum, total, 8. I set aside tl a.,i'a]rd: ,o;f..28 head of cattle and sbstitute thereof the one of 3.0 ;.head of cattle to be '±efUnded to the. appellant (if 28 havc already been refundedthe±'esonen± to pay 2 head in addition)o All other orders remainuntoiched The appeal is allowed to that extent and each party to bear Awn costs. MUS0MA .. P. AJ McJY.LRA, J. .'.: 10/12/85. . . . .. . JDGE. .. ........... . • . • r .-. .. . fir