Kazimoto, J.: The repondent successfully sued the appellant in the Primary Court for breach of promise to marry and the return of gifts he allegedly gave her in contemplation of marriage. Her appeal to the District Court was dismissed with costs. She is now appealing to this Court. F
In the Primary Court the respondent claimed six bags of beans, ten bags of maize, one sponge mattress, a bamboo basket, a sieve and a number of other things. It was also stated that the respondent took a goat to the appellant's father. According to the G respondent's evidence they cohabited in concubinage from 1984 to 1986. The appellant had vehemently denied this. I think she is lying. There is evidence to support the finding of the Courts below that the appellant and the respondent had been cohabiting in concubinage for the period in question. The issue is whether the Courts below were right H in deciding that what the respondent claimed were gifts given in contemplation of a marriage which failed to take place.
Section 71 of the Law of Marriage Act 1971 provides:
A suit may be brought for the return of any gift made in contemplation of a marriage which has I not been contracted,
where the court is satisfied that it was made with the intention on the part of the giver that it A should be conditional on the marriage being contracted but not otherwise.
The respondent had to prove that he gave the gifts to the appellant and the Court must B be satisfied that the gifts were made on the condition that the parties intended to marry.
In his evidence at the trial the respondent stated that he had been living in concubinage with the appellant from 1984 to 1986. He stated in his evidence that in 1986 their relationship with appellant began to become icy. He referred the matter to a conciliation C board. He also stated that before the matter was reconciled the appellant's mother went to harvest beans they cultivated in the shamba. He testified that they cultivated together for two years and then he went on to give the number of bags they got and the D value thereof. It is therefore clear from the evidence on record that these were not gifts. These were what they earned through their joint efforts. He is trying to apply for division of what they had earned together. There was no evidence before the trial court that the respondent gave gifts to the appellant with an intention that the respondent would marry the appellant. I hold therefore that what the appellant and respondent harvested E from the shamba during the two years of their cohabitation was not a gift and the respondent is not entitled to have it returned. That disposes of ground one and two of appeal. F
In ground three the appellant contended that the trial court and the first appellate court failed to call the appellant's brother as a witness. It is the duty of each party to prove his claim in Civil Case. The court can only summon witnesses if the court is asked to do so. The appellant called four witnesses. She was not prevented to call her brother Nathaniel G Januari Ndimbo if she thought that his evidence would be material to the case. That failure could not be blamed on the Courts. That ground has no merit.
As the main grounds of appeal have succeeded the judgments of the trial court and the District Court cannot be upheld. They are set aside. The appeal is allowed with costs. H