Taraiya v. Yusufu Taraiya (PC) Civ. App. 141-A-67; 16/7/71; Kwikima Ag. J.

Taraiya v. Yusufu Taraiya (PC) Civ. App. 141-A-67; 16/7/71; Kwikima Ag. J.

            The respondent sued the appellant for a declaration that he was the rightful owner of a disputed kihamba which he claimed was his share of their father’s land inherited at the latter’s death. He asserted that the appellant had sold the portion he inherited. The primary court dismissed the claim relying primarily on traditional evidence viz: (a) the place in dispute was the spot where the disputants’ parents lived and according to Chagga law it is the last born in the case the appellant that gets his parents’ home-stead. (b) It is customary that whenever there is a division of inheritance a boundary is marked by painting “Masale” (hedge) and there was no boundary marked out. The district court allowed the respondent’s appeal relying on evidence of a witness the primary court had seen and disbelieved.

                        Held: (1) “I cannot respectfully see how the appeal court could rely on evidence of witnesses it did not have an opportunity to see. It is trite law that the trial court’s finding on the credibility of witnesses cannot be faulted unless there is good reason. In the case of Lucas the appeal Court gave no reason why it believed him after the trial court had found him to be an unreliable witness. His evidence was not found to be “straight and with all qualities of trust” by the trial court and the appeal court could not just decide to believe him when it had had no opportunity to see him give evidence and measure his demeanour in order to assess his credit [sic.] ……. It is the law that an appeal court should not interfere with the trial court’s findings of fact unless the inferences made from the recorded evidence are so unreasonable that non interference would result in the miscarriage of justice. In this case the appeal court gave no reasons for relying on Lucas evidence, which evidence the trial court, had already found to be worthless.” (2) Appeal allowed.