Wambura Sirati vs Hamisi Sambeka ((PC) Civil Appeal No. 115 of 1979) [1980] TZHC 214 (11 November 1980)

AT M1JSOMi. PLIME JURISDICTION - (ic) Olvil APPEAL NO. 115 OP 1979 (From the dedis±on of the District Court of Mugumu District at Serengeti in Civil Appeal No. 50 of 1978 Before: R. I. I&icu.me, Esq, District. Magistrate and Original Ikizu Primary Cour.C1viJ. Case No 106 of 1978) WAI.URA SIRATI VERSUS r- H.AMIBI SAMBBKA RESPO1WBNT 0000 1 S JAM t931 • V VV .• V. . : JUDGE.MN,.. ••• VV.. 1 ••VV PALIL1 J .s In the Primary Courta -t Ikizu Serengeti District the appellant sued the respondènthis father—in—law for the return of his bride price V amounting to 24 eOw 7 1 goat and Shs 291/= which he paid when he married his daughter, He told the Primary Court that the respondent's daughter had deserted him and that on this ground Vthir marriage had been dissolved The respondent did not dispute the claimexoept he asked the Court to -take into account, in setting the amount of bride price refundab1e, the fact that the appellant had lived with his daughter for 16 years and they had six children four of whom were a1ive • The Primary Court fixed the amount refundable at 14 cows after taking into account 11 the factors, and ordered the respondent , to refund this amount Against this decision the respondent appealed to the District Court arguing that the amount was too much considering the time the Vmarpage had subsisted and the number of children born of this màrriage. Theistrict Magistra te accepted this argument and held that under Rule 52 B) no portion of bride price is refundable because children had been born of this marriage Against this decision the appellant appealed arguing with some justification that the decision of the District Magistra te was unfair for it ignored the fact that the respondentVts daughter was wio1ly to blame for the breakup of the marriage V V think with respect that the learned District Magistrate misread the import of Rule 52 Be This Rule is not abso1ute Rule 54 gives discretion to the Court to consider how much bride price should be refunded notwithstanding the provisions of Rule 52 A and Be This invariably must happen where the Court has to apportion blame for- the break up of the marriage and to determine which of the parties is fully to blame under Rules 58 .- 60 In the instant oase s quite c1ear].r it is the respondent 1 s daughter who was wholly to blame for the break up of this marriage She left the matrimonial home along with her small children for no reaaon except perhaps to go and live with another man. Indeed this must be so for the respondent readily admitted in the Primary Court his liability to refund; - The only question was how much. V . V 0 For these reasons the District Magistrate erred in applying absolutely Rule 52 Be In the circumstances of this case s that the respo±ldent V !s daughter was wholly and v;ilfully to bme for the break.; up of the carriage, the Par: Court properly ued the discretion

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