Wakilii

M'Nasar v Ahmed (C.A. No. 57-1936)

East African Court of Appeal · [1936] EACA 130 · 1936 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Kathi's Court at Lamu challenging application of Mohammedan law and procedure
Decision
Appeal partly allowed; matter remitted to Kathi's Court for administration of oath on one issue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

In a Muslim Subordinate Court, Mohammedan law applies as regards procedure and evidence where the parties are Arabs or Mohammedan natives. Where parties are non-Mohammedan natives, native law and custom applies. The Indian Evidence Act is inapplicable in civil disputes between natives. The Civil Procedure Ordinance does not apply to Muslim Subordinate Courts where Mohammedan law is applicable and suitable. The judgment was partly upheld and partly set aside for incorrect application of Mohammedan evidentiary rules.

Outcome

Appeal partly allowed; matter remitted to Kathi's Court for administration of oath on one issue

Facts

The respondent sued the appellant in the Kathi's Court at Lamu for Sh. 500, comprising Sh. 200 as balance of proceeds from the sale of 100 jizlas of maize and Sh. 300 claimed as half the profit from the sale at Kismayu. The parties were both Arabs. The plaintiff alleged the defendant had agreed to sell the maize and was entitled to half the profits, with the remaining half going to the plaintiff. Only one witness was called, an agent of the plaintiff. The Kathi held the Sh. 300 claim was not proved and ordered the plaintiff to take an oath in place of a second witness for the Sh. 200 claim, and the defendant to take an oath denying liability for the Sh. 300. The plaintiff took both oaths after the defendant declined to take the oath regarding the Sh. 300. Judgment was entered for the plaintiff for Sh. 500.

Issues

  1. Whether Mohammedan law applies as regards procedure and evidence in a Muslim Subordinate Court where the parties are Arabs.
  2. Whether the Indian Evidence Act applies to civil disputes between Arabs in a Muslim Subordinate Court.
  3. Whether the Kathi correctly applied Mohammedan law in administering oaths and deciding the case.

Orders

  • That part of the Kathi's judgment awarding Sh. 200 to the plaintiff is set aside.
  • That part of the Kathi's judgment awarding Sh. 300 to the plaintiff is upheld.
  • Case remitted to the Kathi to administer the oath to the defendant regarding the Sh. 200.
  • Costs reserved pending the Kathi's report.

Rules and key headnotes

Civil Procedure — Muslim Subordinate Courts — Applicable Law — Mohammedan Law and Procedure
In a Muslim Subordinate Court, Mohammedan law applies as regards procedure and evidence where the parties are Arabs or Mohammedan natives.
Civil Procedure — Muslim Subordinate Courts — Native Law and Custom
Where parties in a Muslim Subordinate Court are non-Mohammedan natives, native law and custom applies as regards procedure and evidence.
Evidence — Indian Evidence Act — Inapplicability to Natives
The Indian Evidence Act is inapplicable in civil disputes between natives in Muslim Subordinate Courts.
Civil Procedure — Civil Procedure Ordinance — Exemption of Muslim Subordinate Courts
Section 12 of the Courts Ordinance 1931 acts as an exception exempting Muslim Subordinate Courts from the provisions of the Civil Procedure Ordinance where Mohammedan law is applicable and suitable.
Evidence — Mohammedan Law — Interested Witness
Under Mohammedan law, evidence from an interested witness who acted as agent for a party cannot establish facts merely by being supplemented by the plaintiff's oath.

Legislation cited (13)

  • Kenya Order in Council 1921 Art. 4(2)
  • Kenya Order in Council 1921 Art. 6(1)
  • Kenya Order in Council 1921 Art. 7
  • Kenya Order in Council 1921 Art. 9
  • Courts Ordinance 1931 s.3
  • Courts Ordinance 1931 s.18
  • Courts Ordinance 1931 s.12
  • Definition of Natives Ordinance 1934 s.2(a)
  • Definition of Natives Ordinance 1934 s.8
  • Civil Procedure Ordinance 1924 s.1(3)
  • Civil Procedure Ordinance 1924 s.2(3)
  • Cap. 4 Laws of Kenya s.3
  • Cap. 4 Laws of Kenya s.4

Full judgment

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

M'Nasar v Ahmed (C.A. No. 57-1936) [1936] EACA 130 (1 January 1936)
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.