Wakilii

Salim v Abdulrehman (Civil Appeal No. 27 of 1927; Criminal Appeal No. 2 of 1928)

East African Court of Appeal · [1928] EACA 1 · 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
Paternity claim barred by valid disavowal made in 1900

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 under Sheria law applicable to concubines (Book 44 of Minhaj), the respondent's formal disavowal of paternity was valid where made promptly after becoming aware of the child's existence. No evidence showed silence or delay after the respondent was confronted with the boy in Zanzibar. The disavowal registered at Lamu in 1900 was regularly made and constituted a complete bar to the paternity claim brought 26 years later. The mother's presence at disavowal was not required.

Outcome

Paternity claim barred by valid disavowal made in 1900

Facts

The appellant, aged approximately 37, 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 approximately four years old, he was brought to the respondent in Zanzibar. Shortly thereafter, on 13 June 1900, the respondent returned to Lamu and swore before the Kathi that the appellant was not his son and that the mother had observed her period of waiting (Steburai). The matter rested until the appellant, now 37 years old, brought these proceedings in 1926. The Kathi of Lamu found in the appellant's favour, but the Supreme Court of Kenya reversed this decision. The appellant appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether the respondent's disavowal of paternity under Sheria law was validly made in respect of a child born to his concubine.
  2. Whether the respondent delayed unreasonably in disavowing paternity after becoming aware of the child's existence.
  3. Whether the mother's presence and denial of the period of waiting (Steburai) was required for a valid disavowal.
  4. Whether the respondent's conduct after being confronted with the child amounted to an acknowledgment of paternity.

Orders

  • Appeal dismissed.
  • Costs to the respondent.

Rules and key headnotes

Sheria Law — Disavowal of Paternity — Concubine's Child — Requirements
Under Sheria law applicable to concubines (Book 44 of Minhaj), a master may validly disavow paternity of a child born to his concubine by taking an oath before a Kathi, and such disavowal is final absent proof of acknowledgment of paternity.
Sheria Law — Disavowal of Paternity — Timeliness — Measurement from Knowledge
The question of delay in disavowing paternity is not measurable in actual time but depends on the circumstances of the case, requiring that disavowal be made when the fact of birth becomes known and in time to prevent a presumption arising from absence of disavowal that the child is that of the master.
Sheria Law — Disavowal of Paternity — Procedural Requirements — Presence of Mother
The mother of a child born to a concubine need not be present when the oath of disavowal is administered, and her denial of the period of waiting (Steburai) is not a prerequisite to the master's formal disavowal before a Kathi.
Sheria Law — Acknowledgment of Paternity — Conduct and Silence
Acknowledgment of paternity under Sheria law may be made by spoken words or by conduct, and continued silence after a claim of paternity is put forward may raise a presumption that the claim is true and constitute an acknowledgment that bars subsequent disavowal.
Sheria Law — Disavowal of Paternity — Kathi's Quasi-Judicial Role
Where a disavowal upon oath has been registered, a presumption arises that the Kathi has acted in a quasi-judicial capacity and has not administered the oath until satisfied that the facts are such that the owner can honestly take a formal oath, and such registered disavowal should be taken as an effective bar to any claim unless a material irregularity is specifically established.

Full judgment

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Salim v Abdulrehman (Civil Appeal No. 27 of 1927; Criminal Appeal No. 2 of 1928) [1928] EACA 1 (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.