Geoffrey Mugambi & 2others v David K. M'Mugambi & 3others

Court of Appeal, at Nyeri October 16, 1992

Gicheru, Kwach & Muli JJ A

Civil Appeal No 153 of 1989

(Appeal from a Judgment of the High Court at Meru (Mr Justice Oguk) dated the 3rd day of August, 1989 in Civil Suit No 60 of 1984)

Customary Law – customs – judicial notice of custom – notoriety – essential for Court to take judicial notice - section 50 Evidence Act.

Customary Law – proof of custom - where an alleged custom is neither notorious nor documented – evidence necessary to establish it.

Civil Practice and Procedure - appeal - Court of Appeal – interference with findings of fact by – circumstances when Court of Appeal may upset findings of fact by a trial court.

The appellants in this case appealed against the decision of the High Court finding customary trust in favour of the respondent in respect of lands registered in the name of their deceased father.

The deceased having initially been allocated some 24 acres of land subdivided the same and distributed it to his sons in accordance with his wives houses as practised under Meru customary law except for some 18 acres which though subdivided remained in his name by the time of his death.

A dispute arose among his children particularly between the respondents and their brothers with the former claiming that their father not having made any provisions for them they were entitled to the 18 acres still registered in the deceased name. They therefore filed a suit in the High Court against the appellant to enforce their claim.

The appellants contended that if the respondents were entitled to any land they should claim against their brothers. A will was produced which purported to direct that the remainder of the deceased land be shared among his children in accordance with Meru customary law.

The judge rejected the production of the will on the ground that its production was too late in the case and that the advocate who was acting for the appellants and who purportedly drew it must have known about it. The trial judge considered the position under Meru customary law and  declared trusts in favour of the appellants.

On appeal it was contended on behalf of the appellants that the learned trial judge misunderstood and misapplied the Meru customary law and that the findings on customary law were made without proper or sufficient evidence.

Held:

1. The law is that if the custom in question is notorious enough, the Court can take judicial notice of it without evidence being called to prove it.

2. In this case the parties did not adduce evidence to prove the relevant Meru customary law of land distribution but as the custom is not only notorious but is also documented, the judge was perfectly entitled to take judicial notice of it and it was not therefore necessary to call evidence or prove it.

3. A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.

4. That is not the case here. All the findings of fact made by the judges were fully supported by the evidence.

Appeal dismissed.

Cases

1. Kimani v Gikanga [1965] EA 735

2. Makube v Nyamuro [1983] KLR 403; [1982- 88] 1 KAR 108

Texts

Contran, E (1969) Restatement of African Customary Law: Law of Marriage & Divorce in Kenya London: Sweet & Maxwell Vol II chapter 4 p30

Statutes

1. Judicature Act (cap 8) section 3(2)

2. Evidence Act (cap 80) sections 59, 60 (1) (a)

Advocates

Mr Mbaya for the Appellants.