Evidence Law Assignment

03. In your role as a research assistant to a Judge of the High Court at Nairobi you have been requested by the Judge to research on and advise her on the evidence law issues that are the subject of an appeal from a burial dispute case which was decided by the Magistrate at Milimani Chief Magistrates Court, Hon Shimenga.

The burial dispute followed the demise and disputed burial of Mzee Mcheketo, an octogenarian polygamist who died intestate. The suit in the lower court was filed by Wamkato, Mzee Mcheketo's last wife, against Hadija, Mwakio and Selema, his other wives who were said by Wamkato and her children to have ganged up against Wamkato to disinherit her and her children. The three wives (Hadija, Mwakio and Selema ) in particular contended that Wamkato was not a wife and was not properly married according to the customs of the Wabare community. The three further alleged that Wamkato's children were in fact not sired by Mzee Mcheketo. They therefore prohibited Wamkato and her children from attending or otherwise participating in Mzee Mcheketo's burial rites and ceremony causing Wamkato to go to court to stop the burial.

In its judgement the magistrates' court (Hon Shimenga) dismissed the case by Wamkato hence the appeal by Wamkato. Some of the Grounds raised by the Appellant (Wamkato) in her Memorandum of Appeal are as follows:

(a) That the Magistrate erred in law by admitting the testimony of Hadija who is well known in the village to be mentally unstable. Hon Shimenga had found that she did not find anything in law to stop Hadija from testifying. 6 Marks

(b) That the Magistrate erred in law by not following the legal procedures and requirements before admitting the evidence of Bango, a 9-year-old child of Mwakio. 6 Marks

(c) That the Magistrate had erred in law by admitting the testimony of Selema to the effect that Wamkato was a notorious woman known for her tendency to claim to be married to rich old men (like Mzee Mcheketo) who are in their death beds with the intent of inheriting and benefiting from their wealth when their die. Selema gave examples of three previous examples where Wamkato had similarly claimed to be married to some old men in other villages just as they were about to die. 6 Marks

(d) That the magistrate erred in law by rejecting the testimony of Wamkato that just a moment before his death while lying on his death bed, Mzee Mcheketo told her (Wamkato) that he (Mzee Mcheketo) was dying due to poisoning by Mwakio, his second wife. 6 Marks

(e) That the magistrate in holding that Wamkato had not proved her case erred in applying an extremely high standard of proof in the burial dispute case which standard is only used in cases involving murder, fraud, theft etc. 6 Marks

In their rebuttal to the appeal, the Respondents Hadija, Mwakio and Selema contend that there was no error in Hon Shimenga's judgement as alluded to by Wamkato, or at all. They therefore prayed that the appeal be dismissed.

Prepare a legal opinion for the Judge who is about to write a Judgement in the appeal guiding the Judge on the position in law on all the above grounds of appeal raised by Wamkato and highlighting the principles, statutory provisions and precedents that the Magistrate ought to have considered before holding and finding as she did.