Wakilii

Bahmishi v Basawadi (Civil Appeal No - 11 of 1939)

East African Court of Appeal · [1942] EACA 34 · 1942 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from judgment of Kathi's Court at Mombasa dismissing claim for value of gold chain
Decision
Appeal dismissed; judgment of Kathi's Court at Mombasa upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Muslim Subordinate Courts must follow the Civil Procedure Ordinance 1924 and the Indian Evidence Act 1872 as applied to the Colony. Section 12 of the Courts Ordinance 1931 applies to all courts including Muslim Subordinate Courts. There is no statutory authority for Muslim Subordinate Courts to follow Mohammedan codes of procedure or evidence. The qualification that the Civil Procedure Ordinance applies 'so far as the same may be applicable and suitable' does not permit application of an entirely different code. The Indian Evidence Act, being an applied Indian Act, excludes Mohammedan Law of Evidence.

Outcome

Appeal dismissed; judgment of Kathi's Court at Mombasa upheld

Facts

The appellant sued the respondent in the Kathi's Court at Mombasa for Sh. 137, the value of a gold chain allegedly taken by the defendant. The defendant denied the claim. The plaintiff's advocate stated he had no proof. The Kathi dismissed the claim with costs. The appellant appealed, arguing that the Kathi erred in not following Mohammedan Law of Evidence and proof, specifically in not administering the Mohammedan deciding oath (Yamin) to the parties. The appeal raised the broader question of which procedural and evidentiary codes apply to Muslim Subordinate Courts.

Issues

  1. Whether Muslim Subordinate Courts should follow the Code of Civil Procedure and Indian Evidence Act or Mohammedan Laws of Procedure and Evidence.
  2. Whether the Kathi erred in not administering the Mohammedan deciding oath (Yamin) without application by the plaintiff.
  3. Whether Section 12 of the Courts Ordinance 1931 applies to Muslim Subordinate Courts.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Muslim Subordinate Courts — Applicable Procedure Code
Section 12 of the Courts Ordinance 1931 enacts that the Civil Procedure Ordinance 1924 applies to all Courts in the Colony including all Muslim Subordinate Courts so far as the same may be applicable and suitable. This qualification does not mean that in certain circumstances an entirely different code may be applied.
Civil Procedure — Muslim Subordinate Courts — Repeal of Exclusion
Section 12 of the Courts Ordinance 1931 has in effect repealed the provisions of Section 1(3) of the Civil Procedure Ordinance 1924 which excluded Native Subordinate Courts (now Muslim Subordinate Courts) from the application of the Civil Procedure Ordinance.
Evidence — Muslim Subordinate Courts — Applicable Evidence Code
Muslim Subordinate Courts are empowered only to receive evidence in accordance with the Indian Evidence Act 1872, which is an act applied to the Colony. There is no statutory authority for the use by Muslim Subordinate Courts of any Mohammedan Code of Evidence.
Evidence — Applied Indian Acts — Exclusion of Mohammedan Law
Where there is an applied Indian Act, Mohammedan Law does not apply. The Indian Evidence Act 1872, having been applied to the Colony by the East Africa Order in Council 1897 and retained by subsequent Orders in Council, excludes the application of Mohammedan Law of Evidence.
Civil Procedure — Mohammedan Yamin — Duty to Apply
The machinery of the Mohammedan deciding oath (Yamin) must be put in motion by the party who requires it, and it is not for the Magistrate to administer it of his own motion. It is not for a Court to conduct a case for a litigant.

Legislation cited (9)

  • Courts Ordinance 1931 s.12
  • Courts Ordinance 1931 s.19
  • Civil Procedure Ordinance 1924 s.1(3)
  • Civil Procedure Ordinance 1924 s.2(3)
  • Indian Evidence Act 1872
  • East Africa Order in Council 1897 Art.11(b)
  • East Africa Order in Council 1902 Art.28
  • Kenya Colony Order in Council 1921 Art.11
  • Kenya Colony Order in Council 1921 Art.24

Cases cited (2)

  • Hussein v Abdulla (L.R.K. Vol. 17, Part 2, p. 95)
  • Said bin Seif v Sharifi Mohammed Shatry (1940, 19 L.R.K. Part I, p. 9)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bahmishi v Basawadi (Civil Appeal No - 11 of 1939) [1942] EACA 34 (1 January 1942)
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.