Lengunyinya v. Lormasi (PC) Civ. App. 63-A-70; 23/7/71; Kwikima Ag. J.

 Lengunyinya v. Lormasi (PC) Civ. App. 63-A-70; 23/7/71; Kwikima Ag. J.

            In the primary court the parties disputed title to some three children. The appellant was their mother’s husband and the respondent was their maternal grandfather. The issues which were resolved in the appellant’s favour by the primary court sitting with Masai assessors were (a) whether the children were born while the marriage of their mother and the appellant was subsisting; (b) whether under Masai law and custom children born when the marriage still subsists belong to the husband who ever their natural father may be; (c) whether the children born before the marriage again belong to the husband. All these questions were answered in the affirmative and the children found to be the appellant’s. But the district court reversed.

                        Held: (1) “Without apprising himself of Masai law and custom, the learned Magistrate who heard the first appeal allowed it because he found that the appellant was not the natural father of the first two children. He then chose, for no recorded reason, to believe the respondent’s allegation that the brideprice had already been refunded to the appellant. This was clearly misdirection. He could not simply reverse the trial court on a factual issue without explaining why he did so. A trial court is the best judge of facts and although an appeal court may interfere where inferences drawn are so unreasonable as to warrant interference, it can only do so with caution. In this case no caution appears to have been exercised by the appeal magistrate. For this reason the conclusion reached cannot be been shown to have improperly arrived at the reversed inference.” (2) Appeal allowed.