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Michael Kombere v. Kone Parosoi (PC) Civ. App. 91-A-68; 16/3/70; Bramble J.



Michael Kombere v. Kone Parosoi (PC) Civ. App. 91-A-68; 16/3/70; Bramble J.

The appellant as original plaintiff was suing on behalf of his brother, who was ill, for the custody of three children. His evidence was that the real plaintiff was married to the respondent’s daughter and had three children. They lived together for some time but later the respondent took away his daughter and the children. Later when he was approached the respondent refused to return them until he was given 20 cows and Shs. 445/- which was done. The respondent gave somewhat different evidence but the witnesses supported the appellant’s case and the trial court, therefore, decided for him. On appeal to the District Court, the court called for additional evidence. There the respondent set up a different case altogether and relying on this the District Court reversed the judgment of the primary court.

            Held: (1) “There is nothing on the record to show that additional evidence was necessary to clear up any point nor did the magistrate record his reasons in writing for taking such evidence as is required by section 17 (a) of the Magistrate’s Courts Act. He founded his decision on his doubts as to whether there was a marriage by the payment of bride price and whether the appellant’s brother was the father of the children. These facts were never in dispute at the trial. An appeal to a District Court is not a retrial and the appellate court in this case was clearly wrong to act as it did.” (2) Appeal allowed.

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