Salim v Abdulrehman (C.A. 2/1928.) [1928] EACA 24 (1 January 1928)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), PICKERING, J. (Kenya) and MUIR MACKENZIE, J. (Tanganyika).

YUSUF BIN SAYID SALIM (Appellant) (Original Plaintiff) $v$ .

## BIN ABDULREHMAN SAYID SALIM (Respondent) (Original Defendant). C. A. $2/1928$ .

Sheria—declaration of paternity.

**Held:**—That as there was no evidence of any silence or delay after<br>the respondent was confronted with the boy, no proof of any<br>acknowledgement of paternity had been adduced, and the disavowal which appeared to have been regularly made was final and was a complete bar to the Appellant's claim.

The Judgment of the Supreme Court was delivered by JOHNSON, Acting. J., in Civil Appeal No. 27 of 1927, and read as follows: -

JUDGMENT.—The claim in the original Case No. 4 of 1926 of the Kathi's Court at Lamu, now appealed against by the defendant, runs: "This is the claim of status, I the plaintiff claim that I am a son of Seyid Salim bin Abdulrehman born to him as a result of his cohabitation, my mother was his concubine, when he turned her out as no longer his concubine she was carrying the pregnancy of which I was born, and that time, it was after six months, the defendant admits this ".

The facts in the case are unusual. The plaintiff is thirtyseven years of age (about) and his mother is still living and has been, one would suppose, available as a witness or a litigant for a long time. Yet this is the first time that the matter has been brought before a Court.

The learned Chief Kathi has commented on this aspect of He says that had the child of four years of age or the case. thereabout ever made a claim supported by reasonable evidence it would have been the duty of the Kathi (as his alleged father would refuse to act as Ins Wali) to stand for him and protect the interests of the child. On reaching the age of fourteen or fifteen the youth could have appeared and yet he has allowed all these years to elapse.

I have spoken of the mother as available as witness or litigant. She could under the law as stated in Book 71 of Minhaj have filed a case claiming to put on record her right to her freedom on account of maternity on the death of the defendant.

The case was heard at great length and the Judgment of the Court now appealed against is full of citations from wellrecognized commentaries on the law.

But the learned Kathi of Lamu has treated the case as if the disavowal required in law was that of a son born of a wife, dealt with in Book 42 of Minhaj under the heading of " imprecation", the "Liaan" of the Judgment appealed from.

The learned Chief Kathi has pointed out to me that a concubine differs from a wife on two grounds: (i) she cannot demand her master's conjugal attentions, as a wife can; and-(ii) that the requirements for disavowal of paternity are quite distinct. For a wife the procedure laid down is that already quoted. For a concubine, the procedure laid down in Book 44 of Minhaj is sufficient.

For both appellant and respondent page 377 of the English translation of Minhai has been quoted.

Commenting on this for the respondent MR. WRIGHT has called attention to the fact that the mother of the child was not present when the oath was administered, and has suggested that the oath should not have been taken by the alleged father until denial of the period of waiting by the mother. The learned Chief Kathi is emphatic that it is good practice to put the father on oath whether the mother denies the period of waiting or not. He states this should be done in the interest of the child. I agree this is good practice, even if not required by law, as a man may be ready to deny paternity but may hesitate if his salvation depend on the more solemn form.

Upon the evidence upon the file there is no doubt in our minds. that the appellant in fact took an oath disavowing the respondent as his son in a form complying with the requirements of law as set out on page 377 of Minhaj.

It is said that this was not taken as quickly as was reasonable. But as against that there is no evidence that the appellant delayed after it was brought to his knowledge that his former concubine had had a son.

In law, the only answer to the appellant's oath is proof that at some time either before or after taking the oath the appellant had acknowledged the respondent as his son.

No. proof whatever of this has been put forward. The learned Chief Kathi informs me that an Arab has two desires in life: "Riches or a son". This saying reflected in his law, in which the onus is on him to disavow paternity of children born of his concubines.

The learned Kathi of Lamu has erred in applying the law relating to wives (Book 42 of Minhaj) to the case before him and not that in Book 44. The appeal is allowed and the Judgment of the lower Court reversed. Costs to the appellant both here

From this Judgment the appellant appealed on the grounds $that:$

The Learned Judge imported into Book 44 of the $1.$ Minhaj a provision which in fact does not exist, namely that there was no need for a disavowal to be made without delay in the case of a child of a concubine.

The Learned Acting Judge erred in holding that the $\mathbf{2}_{\cdot}$ mother of the child need not be present when the oath was administered.

3. The Learned Judge erred in holding that the oath could legally be taken by the alleged father before denial of the period of waiting by the mother.

Schwartze for appellant.

Burke for respondent.

and below.

SIR JACOB BARTH, C. J.—This is an appeal from the Judgment of the Supreme Court of Kenya in an appeal from a decision of the Kathi of Lamu in a suit by the plaintiff, the present appellant, that he be declared the son of the defendant, the present respondent. The learned Kathi found in the present appellant's favour. That decision, however, was reversed by the Court below.

The main issue argued before this Court was that undue delay in disavowing the appellant occurred.

The appellant is alleged to be some thirty-seven years of age and no steps have been taken either by him or his mother until these proceedings were instituted.

The facts appear to be that the appellant's mother, who was the respondent's slave and concubine, lived in Lamu, and that the respondent frequently went to Zanzibar. The respondent swore before the Kathi at Lamu in 1900 that the appellant was not his son and that the appellant was born after cohabitation and after his mother had observed her period of waiting The judgment of the learned Acting Judge of the (Steburai). Court below turns on the differentiation between the necessity for a speedy disavowal in the case of the offspring of a marriage and in the case of the offspring of a slave woman and her master.

In fact in this case I do not think that such differentiation, if it exists, arises, for on my view of the facts the disavowal was made at the earliest possible moment. It would appear clearly that the father did not know of the existence of the child until the child was brought to him at Zanzibar when it was about four years of age. On his return to Lamu soon after he made the declaration referred to above on 13th June, 1900. The matter as I have said has been allowed to rest there until these proceedings were brought.

The question of delay does not seem to me to be measurable in actual time but to depend on the circumstances of the case. so that the disavowal be made when the fact of the birth becomes known in time to prevent a presumption arising from the absence of disavowal that the child is that of the slave mother's master.

In my view the appeal fails and should be dismissed with costs.

## MUIR MACKENZIE, J.-I agree.

PICKERING, J.-What in substance amount to two grounds of appeal were set up in this case. It was alleged that where an owner disclaims the paternity of a child born of his slave concubine, the mother must be present at the time of the disavowal and have in fact denied the due observance of her "Steburai" or period of waiting, before an oath can be administered and taken by the owner to the effect that his disavowal is consistent with the true facts. It is clear that where a claim has been put forward by a concubine, a Kathi, before whom the owner proposes to pronounce a formal disavowal, after making due enquiries as to the observance of Steburai and as to promptitude or silence, would rightly administer an oath to the owner allowing him to swear to his disclaimer of paternity in the absence of the woman. In such a matter a Kathi acts in a quasi-judicial capacity, and where it is established that a disavowal upon oath has taken place a presumption arises that the Kathi has not administered the oath until he has satisfied himself that the facts of the case are such that the owner can honestly take a formal oath. In this appeal the document registered at Lamu on the 13th June, 1900, constitutes a record of a disclaimer which should be taken to be an effective bar to any claim either by the mother or her child unless a material irregularity is specifically established. The absence of the woman and the fact that no denial of the observance of "Steburai" had been made by her do not amount to an irregularity, and no reasons have been suggested why the registered disavowal should not be regarded as properly and regularly made.

The second ground of appeal, being the one which was seriously urged before us, submitted that the learned Acting Judge, from whose Judgment this appeal has been brought, erred in ruling that "there was no need for a disavowal to be made without delay in the case of a child of a concubine". I can discover nothing in the Judgment which supports this imputation to the Acting Judge of any such error. On the $\mathbf{O}$ contrary he finds that there was no evidence of any delay. Speaking of the oath he said: "It is said that this was not taken as quickly as was reasonable. But as against that there is no evidence that the appellant delayed after it was brought to his knowledge that his former concubine had had a son. In law, the only answer to the appellant's oath is proof that at some time either before or after taking the oath the appellant had acknowledged the respondent as his son. No proof of this has been put forward ". Had the appellant understood the principles laid down by the commentators he would have understood this passage as being a clear and emphatic finding by the Acting Judge that no grounds existed in the matter before him for finding that any presumption constituting an acknowledgment of paternity had arisen from Saved Salim's conduct after it had come to his knowledge that the concubine Markabu had borne a son. An acknowledgment may be made by spoken words or by conduct. In this case Markabu had left her master and had returned to Lamu. When she gave birth to a child at Lamu the fact would not necessarily be within her master's knowledge, nor would a presumption as to paternity arise as in the case of a wife or a concubine living in her husband's or master's house. When the boy was some three or four years of age he was sent to Zanzibar and shown to Sayed Salim. A claim that Salim was the bov's father must have then been put forward. Continued silence on the part of Sayed Salim after that time would raise a presumption that the claim was true. For such reason only would the passage of time, or delay, be relevant. If Sayed Salim's silence was of such duration that a Court would hold that his conduct amounted to an acknowledgment of paternity, the Sheria directs that such an acknowledgment be final; and in June, 1900, had the Kathi of Lamu become informed of such conduct on the part of Sayed Salim he would not, or certainly ought not, have administered the oath constituting the act of disavowal. As the learned Acting Judge pointed out no information can be gleaned from the record which throws light upon Sayed Salim's conduct after the boy was presented to him in Zanzibar beyond that he proceeded to Lamu and satisfied the Kathi there that an oath of disavowal could properly be administered. In my opinion the Acting Judge did not misdirect himself as to the Sheria; but has shown that he appreciated how promptitude or delay is material in relation to a disavowal. Whether the child be the child of a wife or of a concubine the question is the same, namely whether the husband or master has or has not so conducted himself as to amount to an acknowledgment of paternity. In answering that question regard must be had to all the surrounding circumstances.

I find myself in complete agreement with the finding appealed against to the effect that inasmuch as there is no evidence of any silence or delay after Sayid Salim was confronted with the boy, no proof of any acknowledgment of paternity has been. adduced. For this reason the disavowal which appears to have been regularly made was final and was a complete bar to the claim put forward in the Kathi's Court. This appeal should be disallowed.