Ngoka V Madzomba  EKLR
|Civil Appeal 49 of 1999||15 Nov 2002|
Philip Nyamu Waki
High Court at Mombasa
Ngoka v Madzomba
Ngoka v Madzomba  eKLR
Ngoka v Madzomba
High Court, at Mombasa
November 15, 2002
Civil Appeal No 49 of 1999
Customary law - proof of customary law - Mijikenda customary law - status of customary law-whether customary law is subject to proof just as other facts to be decided on- nature of customary law- custom existing in any particular era and area-requirement that such customary law should be proved - whether a custom that would force a widow to be inherited against her will can be upheld.
Customary law - application of customary law - mode of application for customary law-criteria to be met before customary law is applied.
The respondent sought a refund of dowry under Mijikenda customary law. He stated that the appellant had remarried his (the respondent’s) late son’s wife and had refused to refund the dowry in accordance with custom. The appellant denied being liable for the amount claimed. The trial magistrate found for the respondent and ordered the appellant to refund the dowry or pay the customary adultery compensation. In the appeal, the appellant alleged, inter alia, that the issue of adultery compensation had not been raised and it was therefore an invalid finding and order. Further, the Mijikenda customary law was not proved that when a person dies leaving a widow and the widow is inherited, dowry should be refunded. The respondent on his part supported the findings of the lower court. The appellant had inherited someone’s wife and had not paid dowry for her. This was Duruma customary law which was admitted by both parties and needed no proof.
1. As the law stands, customary law is a matter of fact which is subject to proof just as other facts which a court of law has to decide on.
2. Customary law is not static but dynamic. The customary law existing in any particular era and area should be proved.
3. In this case no expert was called to establish the said custom and it was not correct for the trial magistrate to say that the custom was admitted.
4. The Constitution of Kenya recognizes customary laws and has established courts for it’s application, but the mode of application is cleary spelt out in the Judicature Act (cap 8).
5. From the evidence establishing any particular custom, the court must be able to determine whether such custom meets the criteria set out under section 3(2) of the Judicature Act (cap 8).
6. Courts must weigh the proved evidence and establish its concurrence with the Constitution and other widely recognized international norms
7. Any custom that would force a widow to be inherited against her will would be repugnant to justice and morality, and in breach of human rights.
8. (Obiter) Women, in whatever community are no longer the commercial objects of yore and it is time customary law diehards woke up to that reality.
No cases referred to.
1. Constitution of Kenya
2. Judicature Act (cap 8) section 3(2)
Mr Magolo for the Appellant
Mr Omwenga for the Respondent.