Nyambari v. Kibira, (P.C) Civ. App. 196-M-70, 30/3/72, El-Kindy, J.

 

Nyambari v. Kibira, (P.C) Civ. App. 196-M-70, 30/3/72, El-Kindy, J.

The appellant, Augustine Nyambari, successfully sued for refund of 20 head of cattle as bride-wealth paid by his deceased brother. He was awarded judgment by the Nyamwanga Primary Court. On appeal, the Mara District Court allowed the appeal and set aside the original order. On appeal to the High Court, against the District Court’s decision, the appellant argued that the Appellate District Court had no jurisdiction to consider new issues and call extra evidence, not originally brought before the court and not contained in the original record. These issues were whether Augustine Nyambari being a brother of the deceased who had been survived by children, was competent heir according to Kurya Customary Law.

            Held: (1) “In the ordinary course of events, an appellate court is bound to consider the appeal in the light of the evidence recorded …… [but] the appellate court can seek further clarification on matters in issue by receiving additional evidence”. (2) “It may well be that the locus standi of the appellant was not specifically considered at the trial, but it was there and, by implication … that was why it permitted him to proceed with the suit … In practice a legal issue such as this one is not dealt with unless it is raised b one of the parties.” (3) “by clause 29 of the [Inheritance] Declaration (G.N. 436 of 1963), the appellant would be an heir bearing in mind that the recovered bride wealth would go to the estate of the deceased brother of the appellant.” (4) Appeal dismissed with costs.