ZAHOR EL-KINDY

Kagashe v. Didas (1971) HCD 157

(PC) Civ. App. 118-M-70; 6/3/71; El-Kindy Ag. J.

This is appeal against a decision of the District court reversing the decision of a Primary Court. The Appellant alleged in the Primary Court that the respondent crossed the boundary between the parties’ shambas which were adjacent and cut down a mango tree belonging to appellant. After listening to evidence and visiting the site, the primary court held against eh respondent finding that the tree was the property of the appellant. The District court reversed after allowing the respondent to put in additional evidence because he (respondent) had not been asked if he had any witnesses in the Primary Court. The Primary Court Record did not show whether the respondent had been given an opportunity to produce witnesses. 

Held: (1) “The Primary Court record is certainly silent on this issue. I cannot say, therefore, that the appellant was given the opportunity to call his witnesses, but with respect, this alone, in this case, was not adequate ground for calling more evidence. The respondent himself did not make this application. This would mean, therefore, that he did not think that he wanted any witness to support his claim. It has often been held (see BUKENE FUFULA  v. NSWANZI FUFULA 1970 H. C. D. No. 107 and MICHAEL KOMBERE v. KONE PAROSIO 1970 H. C. D. No. 115) that additional evidence should be taken unless good reasons should be shown and recorded (see section 17(a) of Magistrates courts Act, cap. 537). In my view, there was no adequate reason for doing so. And it appears that the additional evidence was called for after the court had visited the scene and made the sketch plan. This emphasizes my point that it was made as an after thought if the respondent made it all. As this evidence was considered, I would refer to it in spite of the fact that it was incorrectly admitted.” 

(2) “The evidence shows that the mango tree was the property of the respondent but the boundary between the parties’ shamba is not clear.” 

(3) Appeal dismissed.