Mathew v. Emil (PC) Civ. App. 24-M-70; 30/6/70; Mnzavas, Ag. J.

Mathew v. Emil (PC) Civ. App. 24-M-70; 30/6/70; Mnzavas, Ag. J.

The appellant was defendant in the primary court in which the respondent sued him claiming a piece of land. Judgment was entered in his favour. The present respondent appealed to the district Court where he won the case. The appellant appealed to the district Court where he won the case. The appellant appealed to the High Court. In the lower courts the appellant argued that the respondent could not have inherited the land in dispute from one Mathew, deceased, because respondent was not the son of Mathew. The appellant in support of his claim produced to the lower court a lengthy document which he alleged was the will of Mathew, his late father

            Held: (1) “From the evidence it is true that Emily, the respondent, was born after an illicit association between Mathew and respondent’s mother who was at the time a widow. But in spite of the respondent being born out of wedlock there was evidence that Mathew legitimized the respondent according to Haya customary law and this is in accordance with paragraph 154 and 155 – Corry & Hartinol. I may also add that in accordance with Section 42 Law of inheritance G. No. 436/63 and Section 181 of Law of Persons G.N. 279/64 the respondent had become a legitimate son of Mathew and was entitled to inherit part of Mathew’s property.” (2) “The document produced by the appellant as the Will of Mathew was properly rejected by the learned magistrate as it was (a) not signed by the testator (b) It showed alterations and (c) there was every reason to suspect that the thumb-prints alleged to be of witness to the Will were not genuine.” (3) “Having carefully considered and evaluated the evidence, and having tested the conclusions of the district court drawn from the demeanour of the witnesses who testified before him, I am satisfied that the district court could not have come to any other finding than the one it came to. The appellant who appeared before this court did not at all impress me as a truthful witness. The district Court judgment is sound and fully supported by the evidence. (4) Appeal dismissed.