Mwijoi v. Simulaki (PC) Civ. App. 49-A-71; 1/7/71; Kwikima Ag. J.

Mwijoi v. Simulaki (PC) Civ. App. 49-A-71; 1/7/71; Kwikima Ag. J.

It was not disputed that the respondent in this suit was the natural father of three children the subject o the dispute, the question at issue was whether the children were born in adulterous union between the respondent and the wife, and if so, whether under Masai law and custom the children should belong to the respondent who is still legally their mother’s husband. The Primary Court dismissed the respondent’s claim but the District Court reversed. But the record in the Primary Court did not clearly indicate what the opinion of the assessors was.

            Held: (1) [Referring to s. 8(1) Magistrates Court act Cap. 537 as amended by Act 18 of 1969 requiring Primary Courts to sit with assessors and Ralang Mumanyi v. Wambura Mwita 1969 H. C. D. 9]. The opinion of assessors must be recorded. (2) “The only question is what an assessor’s opinion is. The Shorter Oxford Dictionary gives several  meanings of “opinion” but the nearest definition as to what is an assessor’s opinion seems to be “the formal statement of an expert or professional man of what he thinks, judges or advises upon a matter submitted to him; considered advice.” Such opinion as an assessor gives is only according to his judgment, and this judgment is open to question. The other assessor may differ. The magistrate may also differ. But an assessor’s opinion must be decisive on the issues since the determination of such issues depends on his opinion. The issues cannot be said to have been determined where one or more assessors fail to say in whose favour the issue is resolved.” (3) “I am unable to say that the issues were framed and decided upon by each of the two assessors. The learned Primary Court Magistrate himself wrote a most confused judgment on account of his failure to frame issues from the beginning of the case.” (4) File to be transmitted back to Primary Court with instructions that trial magistrate sit with same assessors and put to them the issues; (a) whether from facts, the children’s mother is still legally the wife of respondent; and (b) whether according to Masai law and custom, the children still belong to him.