Wakilii

Salim v Abdulrehman (C.A. 2-1928.)

East African Court of Appeal · [1928] EACA 24 · 1928 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya reversing Kathi of Lamu's declaration of paternity
Decision
Appellant's claim for declaration of paternity denied; respondent's disavowal upheld as final

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, holding that the respondent's disavowal of paternity was made at the earliest possible moment after he became aware of the child's existence. The court found no evidence of silence or delay after the respondent was confronted with the boy at age four, and no proof of acknowledgment of paternity. The disavowal, properly and regularly made before the Kathi in 1900, was final and constituted a complete bar to the appellant's claim for declaration of paternity. The mother's presence at the oath was not required.

Outcome

Appellant's claim for declaration of paternity denied; respondent's disavowal upheld as final

Facts

The appellant, approximately 37 years old, claimed to be the son of the respondent, born to the respondent's slave concubine. The mother had been the respondent's concubine and lived in Lamu while the respondent frequently travelled to Zanzibar. When the child was about four years old, he was brought to the respondent in Zanzibar. Shortly thereafter, on 13 June 1900, the respondent swore before the Kathi at Lamu that the appellant was not his son and that the child was born after cohabitation ceased and after the mother had observed her period of waiting (Steburai). No claim for paternity was brought by the mother or child until the present proceedings were instituted some 26 years later. The Kathi of Lamu initially found in the appellant's favour, but the Supreme Court of Kenya reversed that decision. The appellant then appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether the respondent's disavowal of paternity of the appellant, born to his former concubine, was made without undue delay.
  2. Whether the mother of the child must be present when an oath of disavowal is administered in cases involving a concubine.
  3. Whether the oath of disavowal could legally be taken before the mother denied the period of waiting (Steburai).
  4. Whether any acknowledgment of paternity by the respondent had been established that would bar the disavowal.

Orders

  • Appeal dismissed.
  • Costs to the respondent.

Rules and key headnotes

Family Law — Paternity — Disavowal by Master of Child Born to Concubine — Timing Requirements
Where a master disavows paternity of a child born to his slave concubine, the question of delay is not measurable in actual time but depends on the circumstances of the case, such that the disavowal must be made when the fact of birth becomes known in time to prevent a presumption arising from absence of disavowal that the child is that of the slave mother's master.
Family Law — Paternity — Disavowal Procedure — Presence of Mother Not Required
Where an owner disclaims paternity of a child born of his slave concubine, the mother need not be present at the time of disavowal, nor must she have denied the due observance of her period of waiting (Steburai), before an oath can be administered and taken by the owner; a Kathi acts in a quasi-judicial capacity and a presumption arises that the oath was not administered until the Kathi satisfied himself that the facts permitted the owner to honestly take the formal oath.
Evidence — Acknowledgment of Paternity — Proof Required to Overcome Disavowal
The only answer to a master's oath disavowing paternity is proof that at some time either before or after taking the oath the master had acknowledged the child as his son, either by spoken words or by conduct; continued silence after being confronted with a claim of paternity may raise a presumption of acknowledgment, but where no evidence of silence or delay exists after confrontation, no acknowledgment is established and the disavowal is final.
Family Law — Paternity — Distinction Between Wife and Concubine — Disavowal Requirements
The requirements for disavowal of paternity differ between a wife and a concubine; for a wife the procedure is that laid down in Book 42 of Minhaj under the heading of imprecation (Liaan), whereas for a concubine the procedure laid down in Book 44 of Minhaj is sufficient.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Salim v Abdulrehman (C.A. 2-1928.) [1928] EACA 24 (1 January 1928)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.