KAMBUGA v. LUGAIJAMU (1972) HCD 19

(PC) Civ. App. 165-M-70; 3/2/7

El-Kindy J.

Paulo Lugaijamu, the respondent, sued the appellant, Rubimbe Kambuga for adultery with his wife Clescentia and the trial court ordered the appellant to pay Shs. 100/- to the respondent as compensation. The facts of the case were: - The respondent was married to his wife in 1950 according to Christian rites, and thereafter they lived peacefully for 12 years. There were 4 children of the marriage. Thereafter, misunderstandings occurred and his wife sued for divorce in 1963, but she was unsuccessful. She did not go back to live with the respondent although the trial court had directed that she should return to the respondent but lived with her parents for some time before she became “married” to on Alphonce. The respondent found her living with Alphonce but he took no steps against him. Later she met the appellant and cohabited with him. The latter did not know that she was married to the respondent as she told him that she had divorced Alphonce some three years back. The trial court held, in a majority decision, that she was still the wife of the respondent and that the suit was maintainable.

HELD:

(1) “Admittedly she was still legally the wife of the respondent, but she had deserted him since 1963. During all this time, the respondent took no steps to take back his wife or to exercise some kind of matrimonial authority over her. There is no indication that he wants her back at all. It looks as if he is torturing her and would exploit other people who have any form of relationship with her. Their marriage, in spite Of the absence of divorce, is dead.”

 (2)”It is not understood or at least I cannot figure it out why after all these years the respondent chose to start legal proceedings against one of his wife’s paramours if it was not intended to torture the woman and to create difficulties with the appellant. These facts weigh in favour of the appellant.”

 (3) Appeal dismissed but compensation reduced to Shs. 1/=