Lugakingira, J.: The appellant lost in the Primary Court and the District Court in an action for H damages for adultery and therefore appealed here.
This appeal ought similarly to fail. There was overwhelming evidence that the respondent's cohabitation with Mwai Amina Maghuna - the lady the appellant calls his wife - was preceded by the I usual and necessary betrothal preliminaries, including the payment of brideprice. The respondent therefore genuinely believed that he
was taking a free woman. Section 72(2) of the Law of Marriage Act, 1971 provides: A
(2) A suit brought under this section shall be dismissed if the defendant satisfies the court that he or she did not know and could not, by the exercise of reasonable diligence, have known that the person with whom he B or she committed the act of adultery was married.
It is evident that by the betrothal and payment of brideprice the respondent reasonably believed that Mwai was unmarried. The suit and the first appeal were therefore rightly dismissed in the light of the Cabove provision.
I think the appeal ought to fail on yet another ground. It is in fact doubtful whether the appellant was ever validly married to Mwai or was himself an adulterer. The evidence further shows the D following. Mwai was first married to one Karai Kiseke. She then left this man (we do not know how) and "married" the appellant. In 1978 she abandoned the appellant and returned to Karai. In 1982 she was formally divorced from Karai in Matrimonial Cause No. 23/82 of the Primary Court at Ngimu. It E was following this event that she married the respondent in 1983. The fact that Mwai had to be formally divorced from Karai suggests that their marriage was subsisting during her cohabitation with the appellant. At any rate, the burden was on the appellant to prove that he had been validly married to this woman before he could be heard to complain of adultery. This burden was not F discharged as the appellant adduced no evidence of the circumstances in which he came to cohabit with her other than that she had left Karai. Therefore the suit did not disclose a cause of action. For these reasons the appeal is dismissed with costs. G
Appeal dismissed. H
A