Facts
On 8/10/1986 the respondent's son eloped with the daughter of the appellant. On 23/8/1988 the appellant with some elders went to the respondent's home for negotiation D about the bride price payable. There was evidence that the respondent collected his own elders for the bargain. It was eventually agreed that the bride price payable be 12 head of cattle, two goats and cash shs.2,650/=. The respondent agreed to pay six head of cattle and cash shs.2,650/= on the spot as his first instalment. However he changed his mind later. The appellant successfully sued the respondent at Shirati Primary Court in Tarime District in a claim for payment of the agreed bride price. The Primary Court found as a fact that the respondent's son had married the appellant's daughter and so the respondent was obliged to pay bride price as agreed. On appeal, by the respondent, the District Court of Tarime held that there was no marriage between the respondent's son and the appellant's daughter and so the question of payment of bride price did not arise. In addition, even if there was a marriage, no order for payment of bride price could issue as the parties had never agreed on the amount of bride price payable. The appellant appealed to the High Court.
Held: (i) That under Kuria customary law marriages contracted by elopement are recognized.
(ii) the fact that the respondent's son and the appellant's daughter had lived together for over two years as husband and wife raised the presumption of marriage which the respondent had failed to rebut.
(iii) to constitute a presumption of marriage three elements are necessary.
(a) that the parties have cohabited for over two years.
(b) that the parties have acquired the reputation of husband and wife.
(c) that there was no formal marriage ceremony between said couple.
Case Information
Appeal allowed
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