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Ralang Mumanyi v. Wambura Mwita, (PC) Civ. App. 164-M-68, 24/10/68, Seaton J.



Ralang Mumanyi v. Wambura Mwita, (PC) Civ. App. 164-M-68, 24/10/68, Seaton J.

The plaintiff sued the defendant in the Primary Court in North Mara District for the return of bridewealth. There was evidence that, after several years of marriage, the plaintiff’s wife (the defendant’s daughter) had deserted the plaintiff, but here was no evidence that the plaintiff had obtained a divorce. At the trial the plaintiff and the defendant gave evidence but were not allowed to cress- examine one another. It was not recorded whether or not they were allowed to call other witnesses. No issues were framed by the court, nor were the opinions of the assessors recorded. The trial court gave judgment for the plaintiff, relying on ss. 133, 134 and 140, Law of Persons, G. N. 279/1963, as applied to North Mara District by G. N. 640/1963, which provide that desertion is a ground for divorce and that the husband may claim divorce and seek a return of bridewealth without legal obligation to search for his wife.

Held: (1) After the plaint had been read and the defendant’s statement in reply recorded, the court should have framed the issues in the case and determined whether or not the defendant admitted or denied the plaintiff’s allegations. [Citing rules 44-47, Magistrate’s Courts (Civil Procedure in Primary Court) Rules G. N. 310/1964].

            (2) The trial court should have recorded whether or not the parties had been give opportunity to cross-examine and to call witnesses.

            (3) Although a primary court has discretion as to whether or not to sit with assessors [s. 8, Magistrate’s Courts Act, Cap. 537], once the court decides to sit with assessors it must record their opinions and, if he disagrees with them, give the reasons for his disagreement.

            (4) The sections of the law of Persons cited by the trial court must be read together with s. 37A which provides that bridewealth may be required to be returned “in case of divorce”. In the present case there was no evidence of a divorce and the award cannot be sustained.

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