In the district court before a different magistrate

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in the district court before a different magistrate. The former proceedings were quashed. 254. Kirisa s/o Kitentera v. Patiri d/o Magesa , (PC) Civ. App. 147-D-66, 7/2/68, Duff J. Plaintiff sued for custody of two children, claiming them as the issue of his mar- riage with defendant. The evidence, when the defendant appealed an adverse judgment o the district court, established that plaintiff and defendant had never married, and that defendant was in fact married to plaintiff’s mother i.e according to a custom of the Wangurime people. She alleged that her two children were fa- thered by her lovers, and it seems not to have been clearly established that plain- tiff was the father of either of them. Defendant and plaintiff’s mother are now di- vorced. Held: Since no marriage between plaintiff and defendant ever existed, plaintiff has no right to custody of the children. The Court stated, obiter; if the marriage between the two ladies were still subsisting, some rights of inheritance might eventually benefit the plaintiff; but as the ladies are now divorced, no such question can arise. Plaintiff’s appeal dismissed. 255. Christina Ndege v. Daudi Wankanya, (PC) Civ. App. 162-D-67, 29/4/68, Saudi J.
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Appellant and her husband had occupied the disputed land for thirty years. In 1959 her husband contracted an illness and she thereafter took him to Kenya for treatment. When she returned in 1964, she found that the land had been re- allocated to respondent by the Village Development Committee. Held: “It is quite obvious that the re-allocation of the land illegal and amounted to abuse of power by the Village Development Committee.” The origi- nal owner, the husband who had died, left behind his widow and five children. Appeal allowed and direction given that appellant and her children be put in pos- session of the land forthwith. (1968)H.C.D. - 91 – 256. N.J. Amin Ltd. v. V. B. Patel & Company Ltd ., Civ. Case 38-D-67, /5/68, Hamlyn J. This is an application by plaintiff to amend his reply to the defence which has been filed. The case arose out of the failure of plaintiff to accept goods delivered by defendant, and the proposed amendment alleged that there was no contract because plaintiff’s offer was withdrawn before it was accepted by defendant. Held: The amendment would not set up a new cause of action, or intro- duce a new case, or change the subject matter of the suit. “Amendments to pleadings should freely be allowed where they can be made without injustice to the other side, and there is no injustice where the other side can be compen- sated by costs.” To refuse to grant the application “would be to make an order which might prevent this court at trial from determining the real matters at issue between the parties. Litigation is intended to resolve outstanding disputes be- tween parties and not merely to disregard them.” Application allowed.
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