Duncan Mberelie v. Gibson Mawalla, Civ. App. 1-A-68, 26/10/68, Platt J.

Duncan Mberelie v. Gibson Mawalla, Civ. App. 1-A-68, 26/10/68, Platt J.

This was essentially a family dispute, growing out of a partnership agreement. The parties are disputing who has failed to perform certain duties under the agreement, whereupon plaintiff brought this suit claiming certain moneys. His action was dismissed, because he failed to present documentary proof of his claim, in that he did not tender in to court receipts for payments he allegedly made. It is claimed by plaintiff on appeal that even if he failed for lack of receipts, he should have been allowed recovery because defendant had at the trial admitted full liability – and admissions against pecuniary interest are admissible under 20(3)  (a), Evidence Act, Act no. 6 of 1967. Plaintiff’s claim was rejected by the trial court solely because of his failure to present the requisite documentary evidence; the alleged admission by defendant was not considered relevant by the magistrate.

            Held: (1) Plaintiff sought to bring fresh evidence – the receipts – before the High Court. Permission to present such further evidence was denied. [Citing Civil Procedure Rules, Order 39, rule 27; R. Tarmohamedi v. Lakhani (1958) E. A. 567, at 584]. “This is not a case of fraud or surprise, and from the nature of the application it is plain that the documentary evidence could have been adduced at the trial.

The plaintiff was represented by counsel …. and therefore I cannot think why fresh evidence should be admitted.” (2) The failure by the trial magistrate to consider defendant’s admissions constituted error. Feeling unable to decide the case on the bases of the record, the High Court remanded the case for a new trial. At the same time it observed that “it is not a light matter to order a fresh trial owing to undesirable features in that course of action.” [Citing Harharrshen Rhemarey v. Lachbai Murlidhar (1960) E.A.1]. New trial ordered.