Maina, J.: In a suit field at Mtwara Urban Primary Court, the appellant was ordered to A pay to the respondent a sum of shs.
1,000/= per month for maintenance of a child born out of wedlock. The appellant was dissatisfied as he thought that the amount awarded was too high. He appealed to the District Court which enhanced the amount to shs.1,192/90 per month. This appeal seeks B an order by this court to reduce the amount awarded by the lower courts.
There was no dispute that the appellant is the father of the child born out of wedlock following the appellant's love affairs with the child's mother who is the respondent in this case. The appellant had in fact been paying money for the maintenance of the child, but it C seems that misunderstandings arose between the parties on the amount which was being paid. The appellant's contention is that he cannot afford to pay the amounts awarded by the lower courts considering his income and the people who depend on him. The Primary Court did not even consider the appellant's ability to pay the amount D awarded. No effort was even made by the trial Primary Court to find the incomes of the parties. The amount of shs.1,000/= was awarded arbitrarily. In a case for maintenance, it is important for a trial court to find out the income of the person sued in order to be E able to decide the amount to be paid. The Primary Court erred in ordering the appellant to pay shs.1,000/= monthly without even finding out the appellant's income and ability to pay.
The District Court took into consideration the appellant's monthly salary of sha.3,578/= and ordered that the appellant should pay one-third of his monthly salary as maintenance F of the child. The learned district magistrate cited the Fourth Schedule to the Magistrate's Court Act, paragraph 3(3)(c)(iii) which provides that attachable salary "shall not be deemed to include two - thirds of any salary or wage which exceeds one G hundred and fifty shillings monthly." That provision means that two-thirds of a persons salary should not be attached. It does not mean that one-third of a salary is automatically the amount of maintenance for a child. The amount which a child should be paid as maintenance will depend on the circumstances of each case. That amount cannot automatically be one-third of the salary of the child's father. H
There was no dispute that the appellant has a wife and three children who depend on him. Two of the children are in secondary schools. These are factors which the learned district magistrate should have considered in deciding the amount to be paid to the child I born out of wedlock. The appellant's children and his wife are entitled to a share in the appellant's salary. It is unfair and
unreasonable to give to one child one-third of the salary, and the appellant, his wife and A the other three children to share the remaining two-thirds of the salary. All the appellant's children and other dependents are entitled to equal share of the salary for their maintenance. The order of the District Court that the respondent should be paid one-third of the appellant's salary is set aside. B
I have considered all the circumstances in this case including the appellant's salary and number of dependents. I order that the appellant pays to the respondent the sum of sh.600/= per month for the maintenance of the child, effective from July, 1988. C
Appeal allowed.
D
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