Wakilii

Said and Others v Ghulum (Civil Appeal No. 21 of 1946)

East African Court of Appeal · [1947] EACA 8 · 1947 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya, which had reversed the Kathi's Court dismissal of a paternity and inheritance claim
Decision
Matter remitted to the Kathi's Court for reconsideration of all evidence in accordance with the Indian Evidence Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that since the application of the Indian Evidence Act to Kenya, the rules of evidence governing proceedings in the Kathi's Court are those contained in the Indian Evidence Act, not Mohammedan rules of evidence. The Application to Natives of Indian Acts Ordinance does not affect the Indian Evidence Act, which governs all proceedings before the Courts of Kenya whatever the classes of persons involved. The Kathi's Court erred in rejecting the respondent's witnesses on grounds of Mohammedan rules of evidence. The appeal was allowed and the suit referred back to the Kathi's Court with directions to consider all the respondent's evidence.

Outcome

Matter remitted to the Kathi's Court for reconsideration of all evidence in accordance with the Indian Evidence Act

Facts

The respondent instituted proceedings in the Kathi's Court claiming a declaration that he was the son of the deceased Salim bin Mohamed Ghulum and sole heir to his estate after the share of his mother. It was common ground that the respondent was the son of Salmo binti Said bin Masood Riyami, who was at one time the wife of the deceased. The Kathi's Court, applying Mohammedan rules of evidence, rejected as inadmissible the evidence of the respondent's mother (on the ground that a mother cannot give evidence in favour of her offspring) and the evidence of two other witnesses (on grounds that their evidence was circumstantial or hearsay). The Kathi dismissed the respondent's claim. On appeal, the Supreme Court reversed the Kathi's decision and held that the respondent was entitled to the declaration sought. The appellants (the executor and widow of the deceased) appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether proceedings in the Kathi's Court are governed by Mohammedan rules of evidence or by the Indian Evidence Act.
  2. Whether the Application to Natives of Indian Acts Ordinance affects the application of the Indian Evidence Act to proceedings in the Kathi's Court.
  3. Whether the Kathi's Court erred in rejecting the evidence of the respondent's mother and other witnesses on grounds of Mohammedan rules of evidence.

Orders

  • Appeal allowed.
  • Orders of the first appellate Court and of the trial Court set aside.
  • Case remitted to the Kathi who tried it for a report on the whole case, based on the evidence taken before him.
  • Direction that the respondent's mother was a competent witness for the respondent.
  • Direction that the evidence given by the other two witnesses for the respondent was admissible.
  • Direction that due consideration must be given to the evidence of all three witnesses for the respondent as well as to the evidence of the appellants' witnesses.
  • Appellants awarded costs in this Court and in the first appellate Court.
  • Costs in the Kathi's Court to abide the event.

Rules and key headnotes

Evidence — Applicability of Indian Evidence Act — Kathi's Court proceedings
Since the application of the Indian Evidence Act to Kenya, the rules of evidence governing proceedings in the Kathi's Court are no longer Mohammedan rules of evidence but those contained in the Indian Evidence Act.
Evidence — Indian Evidence Act s.2(1) — Repeal of rules of evidence not contained in statute
Section 2(1) of the Indian Evidence Act specifically repeals all rules of evidence not contained in any Statute, Act or Regulation in force in British India. Mohammedan rules of evidence, not being contained in any such statute, are included in the repealed rules.
Statutory Interpretation — Application to Natives of Indian Acts Ordinance — Scope of application
The Application to Natives of Indian Acts Ordinance does not affect the application of the Indian Evidence Act, which applies to Courts and not to persons. The Indian Evidence Act governs all proceedings before the Courts of Kenya whatever the classes of persons involved.
Evidence — Competency of witnesses — Mother as witness for her child
Under the Indian Evidence Act, a mother is a competent witness for her child. The Mohammedan rule that a mother cannot give evidence in favour of her offspring does not apply where the Indian Evidence Act governs the proceedings.
Civil Procedure — Appellate powers — Remittal for reconsideration of evidence
Where a trial court has rejected evidence on an erroneous basis of law, the proper order on appeal is to remit the case to the trial court with a direction that the evidence is admissible and must be given due consideration.

Legislation cited (2)

  • Indian Evidence Act s.2(1)
  • Application to Natives of Indian Acts Ordinance (Laws of Kenya, Cap. 4)

Cases cited (5)

  • Khamis bin Ahmed v Ahmed bin Ali and Others (L.R.C. of A. for EA. (1934) Vol. 1 p. 130)
  • Athman bin Mohamed v Ali bin Salim (6 E.A.L.R. p. 91)
  • Wallace Johnson v The King [1940] AC 231
  • Hussein bin M'nasar v Abdulla bin Ahmed (XVII K.L.R. 95)
  • Bahmishi v Basawadi (XX K.L.R. 34)

Full judgment

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Said and Others v Ghulum (Civil Appeal No. 21 of 1946) [1947] EACA 8 (1 January 1947)
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.