Kitina Gwau v. Mukhuu Gwau (PC) Civ. App. 7-D-67; 6/3/70; Hamlyn J.

Kitina Gwau v. Mukhuu Gwau (PC) Civ. App. 7-D-67; 6/3/70; Hamlyn J.

The appellant was sued for eleven cattle alleged to be the property of the respondent but given to appellant only for custody. The trial court decided for the respondent and the District Court upheld that decision. The High Court upheld the decision since the appeal had no merits. But is gone on to make the following observation.

            Held: (1) “Perhaps it would be of use to the Primary Court magistrate if I made one observation concerning his record of the proceedings. I not that there is nothing on that record to show that the several witnesses who gave evidence before him were sworn or affirmed. I think that I can safely assume that the Court took the evidence on oath or affirmation, for the magistrate has noted on the record before the “statement” of each witness, as to whether he were Christian, Muslim or of no religion. It is however requisite that the Court should include on its record the fact that each of the persons testifying before it had first been affirmed or sworn in the normal manner, for evidence which is not subject to the sanctions of an oath or affirmation is, generally speaking, no evidence at all. However I think that the omission to note this fact on the record in this case does not warrant the matter being sent back for re-trial, as I consider that he proper procedure has evidently been followed. (2) Appeal dismissed.