Makori v. Marwa (PC) Civ. App. 136-M-70; 12/10/71; El Kindy, J.

Makori v. Marwa (PC) Civ. App. 136-M-70; 12/10/71; El Kindy, J.

The respondent was married to the daughter of the appellant who disappeared shortly after the marriage but reappeared after an interval of 8 years and divorced him. The respondent then claimed the return of his bridewealth which he asserted were 44 heads of cattle. Judgment was entered in his favour for 30 heads of cattle as the court found that he had already received 14 heads. This order was made in spite of the fact that the marriage certificate stated that only 12 heads of cattle were paid, the trial magistrate accepting the evidence of the respondent and his witnesses that 44 heads were actually  paid but 12 were recorded because at the time there wee legal restrictions limiting the maximum bride-wealth claimable to 12 heads. The court was also influenced by the proof of the statement that among the Wasimbiti, the parties’ tribe, “nobody would ever be able to marry for that small amount of cattle”. The district court dismissed the appellant’s appeal.

Held: (1) “I think there is merit in this appeal ………….there was documentary evidence and oral evidence on the issue of the number of heads of cattle paid by the respondent. The oral evidence was led to contradict the contents of the documentary evidence. This is not permissible under the relevant rules. Rule 14(1) of the Magistrates’ Courts (Rules of Evidence in Primary Court) Regulations, 1964, G. N. 22 of 1964, states clearly that where an agreement is in writing no oral evidence may be given to contradict or vary the terms. The exceptions to the rules are not relevant to the case in hand. Therefore, the evidence of the respondent and that of his two witnesses, to the extent it sought to contradict the contents of marriage certificate which was a written agreement, was wrongly admitted.” (2) “If the restriction was made by a bye-law of the District Council as it seemed to have been accepted, it was unlawful for the respondent to enter into an agreement with others to contravene

            a provision of law. Such agreements are unenforceable in law as it is not only an unlawful agreement but it is against public policy to uphold such a contravention. The respondent therefore, after soiling his hands in the unlawful act, cannot go to the court to ask a court of law to hold in his favour and to enforce an illegal oral agreement. It may be that the relevant law made it practically impossible for him to marry because no Msimbiti could allow his daughter to be married for less than the customary bride-wealth of 44 heads of cattle. This could be a severe hardship, but this would not be adequate reason for committing breach of the law.’ (3) Appeal allowed.