SALEHE AREP V MOHAMMED KHAN(1969)H.C.D. n.273
FACTS
The appellant, Pakistan, was said to owe the respondent a half caste Arab, a sum
of Shs. 1,000/-, in respect of a loan by the latter. Both the Primary and the
District Courts held for the respondent. The appellant appealed to the High
Court on the grounds that the primary court had no jurisdiction to try
the case on the grounds (inter alia) that
the respondent was an Asian and
that no customary law was involved in the case.
HELD
(1) “The
Magistrates’ Courts Act makes no distinction between persons of various races,
and such consideration has nothing to do with its jurisdiction. Persons of any
nationality can seek its assistance, provided that the court is competent to
hear their cases.”
(2) “In so far as the second contention is
concerned – that no customary law
is involved in the matter – that is perfectly true. Learned counsel referred the Court to the case of Desai – v – Warsama (1967) E.A.L.R. 351, which is a decision of my own, wherein the
Court said: “Customary law cannot be the basis of any decision or found any proceedings between
the parties who meet on no common ground of legal procedure and jurisprudence
…….” Since the date of that decision,
the Magistrate’s Courts Act has been amended by the Written Laws (Miscellaneous
Amendments) Act, 1968, the first
schedule of which now provides jurisdiction to Primary Courts for proceedings of a civil nature:- “for the recovery of any civil
debt arising out of contract, if
the value of the subject matter of the
suit does not exceed one thousand shillings, and any
proceedings by way of counterclaim
or set-off therein of the same nature and not exceeding such
value.” In the instant case, the claim is
of exactly one thousand shillings, it
being in the nature of a loan and
consequently a contractual debt, and in view of
the amendment to the Act which
confers powers upon Primary Courts, such court
has jurisdiction in the matter.”
(3) Appeal
dismissed.
FELALON (FATHER)
V. KALINGA(1970)H.C.D.n.259
FACTS
These
proceedings originated in
the Primary Court
of Kilolo. The
contract was the basis
of the claim
for the sum
of Shs. 1,350/-
which concerned payment
for bricks made by the plaintiff
for the use
of the mission
at Kilolo. The
judgment was given in
the Primary Court
in favour of
the plaintiff in
the sum of
Shs. 200/- only. Thereafter the
dissatisfied plaintiff appealed
to the District
Court of Iringa
which allowed the appeal
and “somewhat surprisingly
gave judgment for
the appellant in the
full sum claimed,”
though there seemed
to be the
very slightest evidence
to support such a
finding. Therefrom the
matter was considered
by the High
Court in its Revisional
capacity.
HELD
(1)
“In so far
as the parties
of the case
are concerned it
would appear that the
Mission would have
been the proper
party to have
been the defendant and
not one of
the Fathers of
the Mission, who
himself could hardly have
been personally responsible
for the sum
claimed.”
(2) “……
It is quite clear
that the
whole of the
proceedings in the
Primary Court were
not maintainable there. I
have already noted
that the claim
was in contract
in the sum
of Shs. 1,350/-. Section
14 of the
Magistrates’ Courts Act
(Cap. 537) as
amended by the first
schedule of the
Written Laws, (Miscellaneous Amendments)
Act, 1968, provides jurisdiction
of Primary Courts
in matters of
contract up to
a maximum of Shs.
1,000/- and it
is consequently apparent
that the Primary
Court lacked jurisdiction to
try this action,
which should have
been filed in
a Court of
superior jurisdiction. The proceedings
in this case
are consequently in
excess of jurisdiction and
are ultra vires
the powers of
the trial Court.
The proceedings in the
Primary Court of
Kilolo are void
and must be
and are hereby
ordered to be quashed.”
(3) “As
a consequence of
such order, the
appeal to the
District Court also had
no validity, there
being no original
proceedings which can
support an appeal to
a higher Court.”
(4) “As
a result of this Order
the matter is
remitted to the Primary
Court where it
shall be explained
to the original
parties- should the plaintiff
desire to institute
fresh proceeding , they should
be filed in
a Court of competent
jurisdiction, where the
matter can be
tried de novo.”
MRISHO S/O
PAZI V. TATU S/O JUMA(1968)H.C.D.m.119
FACTS
This
case concerned the
inheritance of property
as between appellant,
the husband of
deceased, and respondent,
deceased’s daughter by a previous
marriage. The property
in question included
a shamba at
Kibaha and gold
ornaments and Khangas. There
was some doubt
as to whether
the gold ornaments
and Khangas. There was
some doubt as
to whether the
gold ornaments and
Khangas existed. Although both
parties live in
Magomeni where there
is a Primary
Court, the case was
brought in the
Primary Court of
Ilala.
HELD
(1)
Under section 4
of the Magistrate’s
Court of Ilala.
Cap. 537, each Primary
Court within a
district has jurisdiction
within the whole
district. As a
result, a party
may file an
action in any
Primary Court within
the district even though
his choice causes
inconvenience and expense
to his opponent. The
Court characterized this
result as “unfortunate”.
(2)
The Primary Court
had no jurisdiction to
deal with the
shamba at Kibaha
which lies outside
the district in which
the court is
located
(3)
Even if the
ornaments and Khangas
exist, in the absence
of evidence to
the contrary it
must be presumed
that they were
purchased by the
deceased with money
given her by
husband, appellant. Therefore, they should
not have been
awarded to respondent.
(4)
The remainder of
the inheritance should
be divided between
appellant and respondent
according to Muslim law.
SANGORA V.
KHALFAN1972)H.C.D. n.73
FACTS
The appellant appealed from a ruling of
the district court, Dodoma, which dismissed his application that the
respondent should have filed his case
against him in the Babati primary court
instead of the Dodoma urban primary
court. The respondent’s suit was for damages
for defamation against the appellant who had accused him of committing
adultery with his wife. The appellant contented that the cause of action arose in Babati. On first appeal the district court
magistrate found that both the Babati and Dodoma primary courts had concurrent
jurisdiction re. s. 17 and 18 Civil
Procedure Code, 1966. It was explained in the High Court that the respondent’s justification for suing in
Dodoma was that the appellant ordinarily resided there as an employee of the East African Railways Corporation in Dodoma. The appellant however established that he was
also living in Babati where his wife also
lived and it was in Babati where he is supposed to have stated that he
found the respondent with his wife.
HELD
(1) “As to the question of residence of the appellant there can be no doubt that he is more resident in Babati
where his wife lives than he is in Dodoma. With due respect to the
learned resident magistrate I would like to
point to him that the Civil Procedure Code – 1966 does not apply in cases filed in primary
courts, Provisions relating to civil
jurisdiction of primary courts are as laid down by the Fourth Schedule to the Magistrate’s Courts Act, Cap. 537 .
According to section 1(b) of the Schedule which section is relevant to the
facts in this case, a primary court has jurisdiction in cases where the cause of action arose within the
geographical limits of the court or
if the defendant is ordinarily resident within the local
jurisdiction of the court. In this case it is
not in dispute that the cause of action arose within the local jurisdiction of Babati primary court and not within the local
jurisdiction of Dodoma Urban
primary court ….. The suit has more
connections with Babati than it has with Dodoma. Added to the above I would
like to mention … that the cause of action having arose in Babati which is for appeal purposes
under the High Court of Arusha, it is
administratively more appropriate if the respondent/plaintiff lodge his claim
before Babati primary court. If he does so he is to be exempted from paying another court fees.”
(2) Appeal
allowed.
CHACHA GIKARO
V. MARWA MORORO(1968)H.C.D. n.3
FACTS
Plaintiff,
Kenyan, sued in
Primary Court in
North Mara for custody of
a boy born in
1957, during his
wedlock with the
boy’s mother. After
their divorce, the
mother married defendant, Tanzania,
and she and
the boy have
resided with him
in the North Mara
community for six
years; during this
time the defendant
cared for the boy
as his own
son. During the
three years between
the divorce and
the mother’s remarriage, the
plaintiff had paid
Shs. 5/- monthly
for the boy’s
support to his
father-in-law; he had
also left three
head of cattle
with his father-in
–law for the same
purpose, the cattle
being part of
the bride wealth
plaintiff had originally paid.
HELD
(1)
Primary Court jurisdiction
may be based,
in personal actions,
on the fact that
defendant is ordinarily
resident within the
local jurisdiction of the
court. The court
in North Mara
had jurisdiction, therefore,
despite the fact
that plaintiff is a
Kenyan.
(2)
The case is
governed by the
customary law of
North Mara. Under the
Judicature and Application
of Laws Ordinance,
1961, s. 9(1),
customary law governs
civil matters “relating
to any matter
of status of
……a person who is
or was a
member of a
community in which
rules of customary
law relevant to the
matter are established
and accepted ……”
The boy, whose
status is in
issue, is a member
of the North
Mara community; the
Local Customary Law
(Declaration ) Order,
Government Notice No.
279 of 1963,
was specifically made
binding to this area
by Government Notice
No. 604 of
1963.
(3)
According to Rule
175 of the law
of persons as
declared in Government
Notice No. 604 of 1963,
children born in wedlock
belong to the
father. Thus, plaintiff
is entitled to
custody of the boy.
(4)
The boy’s mother
must be given
“reasonable access” to her son,
and the defendant must
be compensated by
plaintiff for any
loss he may
have sustained in providing
for the boy’s
welfare. [Citing Government
Notice No. 604
of 1963, Rules 104,
105.] Case remitted
to Primary Court
for further hearings
as will able that
court to make
an order consistent
with the judgment
of the High
Court.
BACOLI V.
MATEMBA (1971)H.C.D. n.42
FACTS
The respondent successfully sued the appellant
for Shs. 130/= being the value of crops destroyed by the latter‟s goats when
they trespassed on the respondent‟s shamba. The appellant‟s appeal to the
district court was dismissed. His main
ground of appeal
in the High
Court was that
the court of first
instance, the Babati
Primary Court of
Hanang District, had no
jurisdiction to hear the matter
because it involved
a tortious claim
for trespass by domestic
animals. He also
raised the issue
that the parties were
of different tribes
and neither the
primary no district
court specified the customary
law under which
the suit was
maintainable.
HELD
(1)
“This is by
no means the
first time when
this court has been
called upon to
decide on the
question whether the
Primary Court being a
court of original
jurisdiction in Customary
[sic] and Laws
is vested with the
power to hear
and determine suits
for trespass by animals. It
was held in damages arising out of
Ruzebe Sweya v.
Jacobo Kitale [1968] H. C.
D. 407 that
cattle trespass is
a “type of
tortious liability” and
that such tort falls within the
purview of customary
Law. The learned
judge who decided so
relied on the
case of Alli Kindoli v.
Tuzihiriwa Pendasamani No. 220
Vol. IX Digest
of appeals form
Local Courts (1962)
page 7. He also cited
another unreported case
by Mustafa J. (as he
then was). On the
other hand Platt J.
held in C. D. Aloice
Matand a v. Sa manya Ngapanyi 456 that cattle trespass was a
tort under the general law of
[1968] H. Tanzania and that
the Primary Court
has no jurisdiction
to hear suits
brought under that head.
He relied upon
Section 9(3) and
(4) of the
Judicature and Application of
Laws Ordinance to
reach this conclusion.
Unfortunately the report in the High
Court Digest is
so brief that
one cannot follow
the former judge‟s reasoning
with any studiousness
in order to
reach a stand
on this very uncertain
question.”
(2)
“The famous Customary
Law Declaration embodies the
law of the
Family and Succession only. Any
claim brought under customary
law must therefore
be proved if
it does not
fall within the category
of Family law or Succession.
In the current
case the parties
who are respectively Gorowa
and Chagga have not is
equally applicable to
them on the
question shown of any custom which cattle
trespass. As such the
Chagga respondent/original plaintiff
has not obtained
judgment under any proven
custom equally applicable to his
Gorowa adversary.”
(3)
“The respondent cannot
be said to
have sued in
the right court
or even to
have proved the custom
under which he
sued and obtained
judgment.”
(4) Appeal allowed
ENDOSHI V.
LEMA(1971)H.C.D.n.416
FACTS
Appellant
successfully sued respondent
in primary court
for damages in trespass
caused by respondent‟s
sheep which destroyed
crops on appellant‟s shamba. Damages
awarded for 2
bags of peas
which trial court found
were destroyed. The
district magistrate reduced
the quantum of damages
on the ground
that seven sheep
could not destroy
pigeon peas worth Shs.
200/=.
HELD
(1)
“With great respect
to the l earned
magistrate, the respondent did
not base his
appeal on that
ground at all.
And even if he
had done
so, the question
was so broad
and scientific that
it would have been
essential to call
additional evidence from
agricultural experts to testify
how muc h each
sheep can eat
in a given
time. So that
when the learned magistrate
ventured to find
fault with the
finding of the
trial court, he was
embarking upon speculation
of the most
dangerous type. It
cannot be said either,
that an appeal
should be allowed
o n speculative considerations.‟”
(2)
“As this court
has very often
repeated the best
court to assess and
fix damages is
the trial court.
Unless the quantum
fixed can be shown
to be so
plainly unreasonable, an
appeal court cannot
and should be ill
advised to take it
upon itself to
interfere. The amount
of damages is a fact
best ascertainable by
the trial court
which is better equipped with
facts and all
the circumstances of
the case. In
this case the learned
appeal magistrate re
assessed the evidence
in order to
reverse the decision of
the trial court.
He did not
point at any
error on the
part of the original
court. He simply
substituted its findings
of facts with
his own, thereby deflecting
the course justice.
How unwarranted int erference should not
therefore be allowed
to stand and
it s hereby
set aside.”
(3) “The
original decision restored and
confirmed.
Danielv.Kanyok(1971)H.C.D.n.325.
Daniel
v. Kanyok termine the
appeal from the
Tribunal. (PC) Civ. App.
80A70; 21/7/71; Kwikima
Ag. J. The appellant was the complainant
in a criminal
case in which
the respondent was convicted
but acquitted on
appeal to the District Court. The Appellant had complained in the
Criminal case that the respondent had destroyed his trees which marked the
boundary between their adjoining pieces of land (vihamba). The appeal was
allowed because the trees were found to be growing on land the title to which
was a disputable matter. The appellant then commenced this action, seeking to
recover damages for the destroyed trees, the expenses which he incurred in the
conduct of the criminal case and the loss of business suffered in the same process.
Out of the total sum of Shs. 3,000/- clamed, the Primary Court allowed the
appellant Shs. 1,455/- being damages for “disturbance” in the conduct of the
criminal case. The respondent appealed to the District Court which allowed the
appeal because the learned magistrate found that the disputed piece of land
belonged to the respondent. On appeal to the High Court;
HELD
Held: (1) “The record shows that the learned
primary court magistrate who tried this case embarked on a judgment even before
he had sought and obtained the opinion of the assessors. This was contrary to
the express provision of section 8 A. Cap. 537. It is a rule that should the
magistrate choose to differ with the assessors, he must record his reasons in
his judgment for doing so. (Shuma v. Kitaa) 1970 H. C. D. 241. He could not
possibly do this without first seeking and recording the assessors‟ opinion and
then writing his judgment and explaining why he disagreed or agreed with the
assessors as the case may be. That it is incumbent upon the magistrate to
record each assessors‟ opinion was laid down in Ralang Mumanyi v. Mambura Mwita
The observation in that case together with the necessity to seek and record the
opinions of assessors before writing a judgment are provided for under section
8 a of the Magistrates‟ Courts act. Cap. 537 which reads as follows :) “[E]very
such assessor shall be required. Before judgment to give his opinion as to all
questions relating to customary law in issue, in or relevant to, the
proceedings and the magistrate shall record the same.” In the present case all
the learned trial magistrate did was to record in the middle of his judgment
that:- “The assessors are of the view that following Criminal Case No. 170/68
the plaintiff Daniel is entitled to Shs. 1, 455/- only.” This procedure was o
bad that it was capable of occasioning failure of justice.”
(2) “The District Court went completely
off-tangent in determining the respondent‟s appeal against the Primary Court‟s
decision and order. In his judgment the appeal magistrate confined himself to
the issue whether the land belonged to appellant or the respondent. He resolved
that the land on which the disputed trees grew was the respondent‟s and allowed
his appeal. This decision was bad because it was based on an issue which was
not before the court. The issues before the court were whether the claim was
maintainable, whether damages sought were specified or general and if specified
whether they had been prayed according to law and finally whether the primary
court had the jurisdiction to hear and determine the suit or not.”
(3) [T]he claim was frivolous abinitio. A suit
founded on the disturbance resulting from a criminal case is always brought by
way of a claim for damages for malicious prosecution. In this case it was the
appellant who did the prosecution by complaining against the respondent. If
anyone was entitled to damages for being maliciously complained against in a
criminal case, it was the respondent who was even remand and fined before being
acquitted on appeal. The appellant had nothing to claim from the respondent
because any expenses he may have incurred in summoning witness were rightly
chargeable against the public purse. They could not for this reason be held to
be the responsibility of the respondent. It is not surprising therefore that eh
primary court dismissed that part of the claim touching witnesses‟ expenses in
the criminal case.”
(4) “The primary court as not competent to
determine this suit which was one for the tort of malicious prosecution. The
civil jurisdiction of Primary Court is
confined to:-“
(i) where the law applicable is customary law or
Islamic Law ……
(ii) for the recovery of civil debts, rent or
interest due to the Republic, the Government or any Municipal, town or district
council ………
(iii) For the recovery of any civil debt arising
out of contract if the value of the subject matter does not exceed one thousand
shillings ….
(Section
14 Magistrates‟ Courts Act cap. 537.”
It was under this very provision that Mustafa, J.
(as he then was) held in the case of Walimu Jilala v. John Mongo, 1968 E. C. D.
81 an cattle trespass, a common law tort, was not triable by a primary court.
By simple analogy I would hold malicious prosecution, another common law tort
to be outside the pale of the primary court.”
(5) “The appellant refereed vaguely to the
business he lost during the conduct of
the criminal case as Shs. 2,379/00 without adducing evidence as to how
specifically he arrived at that figure, the claim for loss of business earnings
ought to have been proved strictly. Merely to allege a figure without
supporting it by evidence as the appellant did cannot suffice. The appellant
did not establish his claim even if his suit was held to be good and within the
jurisdiction of the Primary Court.”
(6) Appeal dismissed.
JAN MOHAMED
V REGISTRAR OF BUILDING
(1972)H.C.D n.114.
FACTS
Plaintiff has filed a suit in High Court, Arusha, for declaring him to
be a lawful tenant of the suit premises. Plaintiff says he is harassed by the
defendant and, fearing he would be forced to vacate the suit premises before the suit is finally
disposed of, he has filed an application under
Order 37 of Civil Procedure Code seeking the following Court’s order;
“That the defendant and/or their servants, agents or otherwise be restrained
from evicting or otherwise interfering with the peaceful tenancy by the
plaintiff.” The defendant at the same time submits that this suit (and not
the application) should have been filed
before the District Court of Arusha and
not the High Court, Arusha and as such this suit should be sent to the District
Court of Arusha for hearing. Plaintiff
has filed a declaratory suit. He also filed an application seeking an injunction Order against the defendant. A day
is fixed for hearing this application. The defendant has no objection to the application being
granted. But in addition he says the suit should have been filed before
the District Court of Arusha and not the
High Court and this suit should be sent to the District Court of Arusha for hearing.
Is this Court at this stage competent to entertain the defendant’s request and grant it? Is it within the scope
of the present application to decide whether
this suit should be heard by High Court or District Court of Arusha?
HELD
“As far as the present application is concerned,
the defendant has no objection to it and gives what the applicant seeks. If
it is so is it permissible to go beyond
this application and consider the question of
the correct court before which the present suit should be filed and make an order accordingly?” This question
is beyond the scope of the present application and the court
has no power at this stage to make any
findings on it.
Application granted
MACKREYO KINGU S/O NAKALA V. R (1968)H.C.D. n.105.
FACTS
Accused
was convicted of
assault occasioning actual
bodily harm and
sentenced to 9 moths’
imprisonment. The complainant,
his wife, had
angered him by her
tardiness in preparing
his supper. Her
injuries, hemorrhages in
both eyes, were not
serious.
HELD
“In
cases of this
nature between husband
and wife and
where the injuries inflicted
are not serious,
recourse should be
had to the
provisions of section
134 of the
Criminal Procedure.” Sentence
reduced to result
in immediate release.
UMBWA MBEGU AND ANOTHER V.
R(1969)H.C.D. n.312.
FACTS
The accused were charged with four counts of
assault causing actual bodily harm c/s 241, Penal Code. In the middle of the
trial they decided to plead guilty, and the magistrate thereupon made an order
for “reconciliation” under s. 134, Criminal Procedure Code, and also ordered
compensation to the four complainants. One of these complainants is now
appealing against this order, on the
grounds that he had been aggrieved by it.
HELD
1) “The first point which falls for decision in
this matter is the question of whether the appellant has in fact any right of appeal to this Court ….. Appeals
in criminal matters are governed by the provisions of Section 312 of the
Procedure Code, which reads:- “Save as hereinafter provided, any person
aggrieved by any fining, sentence or
order made or passed by a subordinate
court … may appeal to the High Court.
The question which now arises is whether
the appellant is a “person
aggrieved” by the order passed by the
lower court. Certainly he was not a party to those proceedings; he was it is
true, a person injured by the assault, but he was not the prosecutor in the
case. That was the Republic, nor was the proceedings brought by one who had
obtained the leave of the court to
conduct a prosecution as a private person.
Jumbe Mohamed Tambaza v. Hashil
Hemed and another (1960) E.A.L.R. 527
laid down the proposition that a private
prosecutor has no right to appeal by way of case stated against an acquittal – a decision which, though not
on all fours with the present case, is at least indicative of the underlying
principles which were are investigating. I think that some assistance
can be obtained from a consideration of section 81(1) of the Criminal Procedure
Code…..From the wording of this section it seems clear that the conduct of “any
criminal case” is in the hands of the
Republic and that, despite a private person conducting the prosecution, and
despite a complainant having by his complaint having by his complaint
instigated the proceedings, the two parties before the Court are in reality the
Republic and the accused. What then of the “person aggrieved by
any order” spoken of in section 312 of the Code, for he is given the
right of in section 312 of the Code, for he is given the right of appeal… section 21(1) of the Magistrates’ Courts Act
(Cap. 537) provides for appeals from District Court in matters originating in
Primary Courts to the High Court While
again this is not the background to the present case, it at least
indicates the basic grounds on
which appeals are rooted. It provides that in criminal proceedings the Direct of Public Prosecutions
alone may appeal to the High Court,
while in “any other proceedings” any
party “If aggrieved” may appeal. The provision of that section were
pointed out by this Court in the case of
Katamba Mwaisunga v. Republic
1967 H.C.D. n. 58 and while, as I say,
it has no direct bearing on the
present case, it seems to be in accordance with the thesis that the only persons before the court as parties
(and who can therefore be “aggrieved”) are Attorney General and the accused
persons. It is established law that a
right of appeal can only be given by statue and in that case only
by words which are clear, express and free from ambiguity. I consider
that the wording of section 312(1) of
the Criminal Procedure Code is not so clear
as to give the appellant the
right to come before this Court as a “person aggrieved.” I think that the appellant might well have considered that
he always had a civil remedy, in damages and, though it is true that in such
action the court should bear in mind the amount of any sum which he had
recovered in the criminal matter, the award of the lower court in this case does
not preclude additional compensation from being sought in the civil courts.
It is therefore a little difficult to
see in what the appellant is aggrieved by the order of the District Court. In the event it appears
clear that the appellant has no status in this Court and that his appeal
is misconceived. He was neither a party to the lower court proceedings, nor can he be
heard by this Court. Accordingly his
appeal must be and is hereby dismissed.
(2) “One other matter however remains for this
Court to decide and that must be done in its reversionary powers under Section
329(1) of the Criminal Procedure Code ….. The order of the District Court,
which I have found to be made under
Section 134 of the Code, purported to impose upon-the respondents an obligation
to pay a sum of money to the appellant and others. While the respondents have not expressed any
dissatisfaction with the order, the appellant clearly is in no agreement with
it; else he would not have instituted
these proceedings in this Court. Section 134 provides for the making of such Order where two conditions exist. The
first is that the case is one in which
such Orders are permissible and Republic
v. Saidi Ibrahim (1960) E.A.L.R. 1058 discusses the scope of
the section. At p. 1061 the Court said: - “All felonies are expressly
excluded. And from the express inclusion
of common assault, it would seem that other kinds of assault constituting
only misdemeanors, as for instance
assault causing actual bodily harm, are
excluded by implication.” Following this opinion as I do, it seems evidence
that the District Court had no
jurisdiction to deal with the matter as
on falling within section 134 and that consequently the Order made by it
was a nullity.”
(3) “A second consideration also makes it appear that the Court’s order cannot
stand. That is (and I have already
referred to this) that the making of
such Order presupposes an agreement between accused, complainant and court as to the terms of the Order.
“Reconciliation” connotes a restoration o harmony between the injured person
and the guilty party and consonance can only be achieved by consents; it cannot
be imposed by fiat from above upon an
unwilling recipient. In this I consider that the trial magistrate was wrong,
for it does not appear from the record that any consent was given to the terms of the settlement. It was
contemplated by the section.”
(4) Proceedings declared void and order set
aside, with option to start fresh proceedings. (Editors’ Note: as to whether or
not reconciliation can by ordered in
assault cases other that common assault, see
Mackreyo Kingu s/o Nakala v.
R., (1968) H.C.D. n. 105, which
impliedly takes the opposite view).
DOMINICO SIMON
V. R 1972)R.C.D.n.152
FACTS
The appellant was convicted of house-breaking and
stealing c/ss 294 (1) and 265, Penal Code. During the course of his trial the two original assessors were
replaced by others who did not hear all
the evidence presented.
HELD
(1)”Section 8 of the Magistrates Courts’ Act. Cap. 537, as amended by S. 2 of
the Magistrates’ Courts (Amendment) Act,
1969, being Act No. 18 of 1969, provides
that trial in primary courts shall be
with at least two assessors. In this
case the trial commenced with Gabrial and Blasio as assessors. These assessors
heard the whole evidence, but on an
adjourned date John and Paulo sat as assessors and it was recorded that the appellant did not wish to have the witnesses, who gave
evidence, recalled. This may have been so. But can it be said that the court
was properly constituted by a total change of assessors? The Magistrate Courts
Act, Cap. 537 has not provided for such
an eventuality. It has, however
provided, that the trial can proceed to conclusion with one assessor if the other assessor was unable to attend
and a conviction on such basis is not to be set
aside because of this. It is understandable
why it should be so in such a case ….
There is not total break of continuity. But in the case, there was a total break, and the fresh assessors had not
had the valuable advantage hearing the witnesses although they may have heard the summing up
of the case. Sometimes, and I cannot say that this case was not one of them,
the demeanour of witnesses and what impression they make in a court can be the determinant factor ……in a case. Hence
…..the necessity of the Court listening to
all the witnesses whenever that
is practicable. In my view, therefore, the fresh assessors could not be substituted for the original
assessors even if the charged person raised no objection. No reason appears on
record why the original assessors did not
appear. In the absence of the original assessors, the trial court was
not properly constituted as required by
section 8(10 of the Magistrates Court’s Act, Cap. 537, and therefore the trial of the appellant was
a nullity (see Kiwelesi v. R. (1969)
E.A. 227).”
(2) “In normal circumstances I would have ordered
a retrial, but for a number of reasons I do not propose to do so. In the first
place, even if the court was properly
constituted, the evidence on record would not have sustained his conviction.
Secondly, the appellant has almost completed serving his term of imprisonment
and it is highly unjustified to put him again through the null of trial. And that the value of stolen goods
was so negligible.”
(3) Appeal allowed
ANDREA S/O KIMBULI V. R(1968)H.C.D. n.31
FACTS
Accused
was charged in
Primary Court with
housebreaking, theft, and
assault. At the close
of the prosecution
case, the magistrate
substituted a charge
of robbery [P.C. s.
286], and accused
was duly convicted
of that offence.
The record indicates
that after the
original charges were
read and the
accused was addressed in
terms of section
41(2)(b) of the
Magistrates Courts Act,
he stated that
he did not wish
to be tried
by the court.
The record also
indicates that after
the charge was altered
and read to
the accused, he
denied guilt and
was altered and
read to the accused,
he denied guilt
and was put
upon his defence.
HELD
(1)
The requirement of
transfer under the
Magistrates Courts Act, section
41(2)(b), is not
discretionary. If the
Accused is charged
with an offence punishable with
imprisonment for more
than 12 months
or by corporal
punishment, and elects
to be tried
in the District
Court, the Primary
Court Magistrate “shall transfer”
the case.
(2) “The
alteration or substitution
of the charge
at the end of
the case for
the prosecution should
have been followed
by the appellant being given
the option recalling
and previous witnesses
and cross-examining them – the procedure
outlined in s. 21 of
the Third Schedule
to the Magistrates Courts Act.”
(3) The
irregularities of procedure
might not have
been fatal to the
convictions of accused
had the evidence
clearly indicated that
he was guilty
of the offence charged.
As it did
not, the conviction
could not stand.
HASSAN V. R (1970)H.C.D.n.146.
FACTS
The
accused was convicted
on two counts:-
1st Count: House
breaking c/s 294 of
the Penal Code;
2nd Count; Stealing
c/s 265 of
the Penal Code.
In his appeal
he challenged the sufficiency
of the evidence.
From a perusal
of the record,
it appeared that the
appellant did not
cross-examine the witnesses
and did not make
any statement in
his defence because
he informed the
court that he
did not like his
case to be
heard before the
Primary Court, but
wished it to be heard before
the District court.
The District Magistrate
had given directions
that the case should
be heard by
the Primary Court
notwithstanding the appellant’s objections. Therefore,
the Primary Court,
after considering the prosecution
evidence, convicted the
appellant charged. It
was argued that
in ANDREA S/O KIMBULU
v. R. reported in
1968 High Court
Digest at No.
312 the same
court held “that the
requirements to transfer
under the Magistrates Courts
Act, Section 41(2) is not discretionary
and if an
accused person elects
to be tried
in the District Court,
the primary court
Magistrate shall transfer
the case. However,
the court went on the hold
that the irregularities of
procedure might not
have been fatal to
the conviction of
the accused had
the evidence clearly
indicated that he was
guilty of the
offence charged.” On
the basis of
the case quoted,
it was submitted that
in he present
case, as the
evidence was sufficient,
the conviction could be
upheld.
HELD
(1) “The
judgment in the
case cited happens
to be one
of my own and
I would, with
respect, observe that
my holding that
the irregularities of procedure
might not be
fatal to the
conviction of accused
had the evidence clearly indicated
that he was
guilty of the
offence charged was
obiter in as
much as in the
case cited, the
evidence was insufficient
and the conviction
was quashed. I have
since had the
opportunity of further
considering this matter
in Salum Issa @Maulidi
Kassata vs. Republic
(P.C.) Criminal Appeal
No. 698 of 1969
(unreported) in which
the point was
raised and fully
argued by the
Senior State Attorney on
behalf of the
Republic that the
requirements of section
31(2) (b) of the
Magistrate’s Courts Act
being mandatory, failure
to inform the
appellant of his right
to elect whether
or not he
wished to be
tried by the
Primary Court is an
irregularity; and when
the accused person
indicates he does
not wish to be
tried by
the Primary Court
is an irregularity;
and when the
accuse person indicates he
does not wish
to be tried
by the Primary
Court, this aggravates
the irregularity. As it
was impossible to
be satisfied in
such circumstances that
there was no failure
of justice, I
held that the
proceedings were a
nullity and quashed Salum
Issa’s conviction.”
(2)
“For similar reasons,
I must hold
in the present
case that the proceedings
ere irregular because
it appears that
the magistrate did
not inform the accused
of his right
to elect to
be tried by
the District Court.
Certainly, the accused unless
so informed would
be unable to
know whether the
offence carried the sentence
or more that
12 months imprisonment,
such offences being those
which under section
41(2) (b) of
the Act. The
Primary Court has no
jurisdiction to try
against the accused’s
wish. The conviction
is accordingly quashed, and
the sentence set
aside. The appellant
is to be
tried de novo
before a court of
competent jurisdiction and
before another magistrate
than the one
who tried him in
this case”.
(3)
“Retrial ordered”.
JAMAL MANJI
V. R(1970)H.C.D.n.338.
FACTS
The
appellant, a first
offender, pleaded guilty
to permitting a
motor vehicle to be
driven on the
public road without
affixing or exhibiting
a motor vehicle
licence in the prescribed
manner ad sentenced
to a fine
of Shs. 400/-
or distress in
default. His notice of
intention to appeal
against sentence was
filed 19 days
after the 10 days
prescribed by s.
3124(a) C.P.C. for
filing such notice,
this being caused
by the fact that
it was mistakenly
sent to Mwanza
instead of Musoma.
Another notice was sent
to Musoma after
the mistake had
been discovered. The
petition of appeal was
however filed in
time. When the
appellant made this
application for leave to
file notice of
intention to appeal
out of time,
it was argued
by the State that
since a judge
of the High
Court (Mnzavas J)
had refused to
entertain the appeal because
of failure to
comply with s.
314(a) C.P.C., the
Court had become functus official
and could not
entertain the appeal:
HELD
(1) “The
compliance required by
section 314 is
total. A partial compliance, as
by giving the
notice of appeal
in time but
lodging the petition
out of time or
vice versa is
not enough. A
partial compliance creates,
at most, an imperfect
appeal which by
section 314 cannot
be entertained.”
(2) “he
right of appeal conferred
by section 312
of the C.P.C
would be lost if the
periods of limitation prescribed
in section 314
(a) (b) were
not complied with.
The proviso to section
314, however, provides
that the High
Court may, for
good cause, admit an
appeal notwithstanding that
the periods of
limitation have elapsed,
that is to say,
restore the right
of appeal and
treat an imperfect
appeal as valid
and proper appeal or
allow a notice
of appeal to
be given and
petition of appeal
to be lodged out
of time, where
no steps have
been taken by
the prospective appellant.
When the curt has
exercised this power
in favour of
an appellant or
prospective appellant it would
then proceed to
entertain tit (consider
or deal with
it either under
section 317 or 319 of the
C.P.C. This power
to admit an
appeal cannot be
exercised unless good cause
is shown. The
good cause has
invariably to be
shown by the appellant
or prospective appellant.
He initiates the
proceeding by moving
or applying to the
court to exercise
its power under
the proviso. But
where the Court, ex
propio motu, decides
to exercise its
powers under the
proviso, then, I think
that it should
give the appellant
an opportunity to
show cause before making
an order thereunder.”
(3) “A
close study of
the said ORDER
showed the Mnzavas, J.
merely refused to
entertain the appeal
because section 314
(a) and (b) had
not been complied
with. Furthermore, he
made no order
striking out or dismissing
the appeal, apparently
leaving it opens
to the appellant
to show good reasons
to the Court
to admit the
appeal. Had an
ORDER been made
striking out the appeal
as incompetent there
might have been
some substance in
the State attorney’s contention.
The question before
me is whether
to admit the
appeal for good cause,
a matter which
was never before
Mnzavas, Ag. J.”
(4) The appellant was
anxious to pursue
the appeal by
engaging counsel promptly.
The mistake in relation
to the original
notice was caused
by a clerical
error by counsel
and appellant ought not
to be penalized
for this. Good
cause has been
shown to admit this
application. Sentence reduced
to a fine
of Shs. 150/-
(5) Appeal
allowed.
FRANCIS V
AROBOGASTI(1971)HCD n.160
FACTS
The
appellant was the
original defendant in
a suit to
dissolve a partnership between himself,
the respondent and
eight others. Both
courts below found that
there were a
partnership agreement b etween
the parties and gave
judgment accordingly. The
issue was whether
the Primary Court
had jurisdiction to try
the case.
HELD
(1)
“The issue which
was central in
this case was
whether the Primary Court
had jurisdiction to
hear a partnership
case. thi issues brought
out above s and
other Joseph Kimalando v.
Philemon Mshau [1968] H. C.
D. 138, the
facts of which
were as follows:
The plaintiff‟s deceased
wife was a member
of the All
Christian Association of
Moshi which was an
association designed to
help with the burial
expenses of its
women members. It was
held that the
suit was not
concerned with customary
law and it would
not fall within
the jurisdiction of
the Primary Court.
It was further held
that if the
Chairman was misusing
the funds, then
it was f or the
Association to sue
him, and not
any individual member
of the association or
less still her
husband.”
(2)
“This suit was
determined without jurisdiction and
it cannot be
said to have
been properly termined. Proceedings
in both courts below were null and are hereby set aside:
(3) Appeal allowed
ABDALLAH SALIM
V. RAMADHANI SHEMDOE(1968)H.C.D.n.129
FACTS
An
earlier High Court
judgment in this
custody case awarded
respondent “all the expenses
incurred in the
upbringing and maintenance”
of a certain
child, who was at the time
aged 17 years,
including the costs
of her education
for 4 years. The
judgment directed the
Primary Court, which
had originally assessed
these expenses at Shs.
3000/-, to take
evidence from the
parties and from
village elder as to
“the average cost
of maintaining a
child for a
year at the village where
the parties lived.” Arguing
upon the very
conflicting evidence thus
gathered, respondent put
the figure at
shs.600/- per year,
making a total
(including education costs) of
Shs. 10, 800/-. Appellant
continued to argue
for a total
of shs. 300/-
as a maximum. He
submitted that even
this amount, which
had already been
paid, would be an
overpayment, since Sambaa
customary Law permits
only the award of
“mtonge” ---- one
cow --- in such cases,
The these village
elders who testified strongly supported
his view, also
agreeing that the
value of one
cow would be about
Shs. 150/- Appellant
was also supported
by respondent’s wife,
the mother of the
child, who stated
that respondent had
“not fairly treated”
the child.
HELD
(1)
“This court does
not seek to
interfere with the
customs of any particular tribe
in Tanzania. What
the court seeks
to do is to ensure
that any customary
practice does not
operate unfairly against
any party. ‘Mtonge’
might have been a
very good custom
within the tribe
when it came
into operation, but
I think that must
have been a
very long time
ago, when a
cow would have
a very high value
…… It is
abundantly clear that
no parent could
bring up a
child to the
age of seventeen, and
also make provision
for the child’s
education, on the
sum of as they
are, rather than
take shelter under
an old customary
practice.”
(2) The
High Court is obliged
to proceed in
this case, without
the vital assistance
from the locality
where the dispute
arose which it
requested in its
earlier order.
(3)
Considering the relatively
low costs of
village life, and
attempting to account
for the inevitable variations
from one year
to another, “the
fairest, if not
the lowest, estimate” of the
sum due
would be, in
this case, Shs.
100/- per month,
for a total
(including education costs)
of Shs. 1,940/-
This sum must
be refunded to
respondent before appellant may
take custody of
the child.
MASERO MWITA V.RIOBA MASERO (1969)H.C.D.n.199.
FACTS
The respondent, who was the appellant’s son, wished to get married, and asked his
wealthy father for cattle for bride price. The father refused, mainly because
of an earlier dispute between them which resulted in the father serving a
prison term. The son then requested the clan
elders to persuade his father to give him the bride price, but they
failed. The son brought an action in the
primary court to obtain the bride price from his father, and succeeded. The
district court upheld the son’s claim. Upon further appeal.
HELD
This dispute involves a very difficult decision. And that is, how much of the
recognised Customary Law should be enforced by the courts? It is undisputed
that according to Kuria Customary Law
the respondent has the right to claim bride price from his wealthy
father and in the remote past a reluctant father could have his cattle seized
by clan elders and used for the son’s bride price. Or if the son decided not to
use this semi-violent method and four the bride price from other sources then the members of the clan
would punish the father by austrocising him and exclude him from all social
functions and treat him with contempt.
Very few fathers were prepared to undergo this public punishment. But I
am of the view that, this obligation
though very strongly felt by Kuria tribesmen, cannot be enforced by the courts.
To do so would be dangerously encroaching on the individual rights of property.
I have in mind that a parent has both
moral and legal obligations for the
moral and physical maintenance of his
infant child. If he does not fulfill these obligations the courts have
inherent jurisdiction to force him to fulfill them. But once the
child reaches maturity and is physically fit
the moral obligation remains but the legal obligation very much weakens
or disappears altogether. In this case the son is mature and physically fit.
Also his relationship with his father leaves
very much to be desired. I am therefore
of the view that brideprice is not a necessity which the father is legally
bound to provide to his son at this stage of
his life. The courts have
therefore no inherent jurisdiction to enforce it.” Appeal allowed.
META TEBERA
V. ISAKWE RONGOYA(1967)H.C.D n.119
FACTS
In an earlier
judgment Warioba, the
brother of the
present appellant, was
ordered to pay compensation
to the present
respondent for having
committed adultery with his
wife Because Warioba
had no property,
several head of cattle belonging to
appellant were seized
by respondent in
satisfaction of the
earlier judgment. Appellant brought
this action to
recover the cattle.
HELD
Under
customary law the
respondent had a
bona fide claim
to the cattle
and they could
be seized in
satisfaction of the
judgment. However, the
High Court was “satisfied
that this law,
if applied, would
be repugnant to
justice and morality…..” The
Court ordered that
the cattle be
returned to appellant
SHIV. J. KUMAR SOFAT V.
R[1957] 1 EA 469
FACTS
The appellant was convicted by the resident magistrate, Nairobi, on
sixty-one counts of thefts of “cash” by
a person employed in the public service. Most of the counts involved
the stealing or conversion of cheques. The appellant
appealed to the Supreme Court alleging that
the convictions were wrong in law
in that the charges were not proved as
laid. On the hearing of the
appeal the Supreme Court, of its own motion, took exception to the unsatisfactory nature of the trial and in particular to the
number of counts laid. The
Supreme Court, however, refused
to consider the grounds of appeal on
their merits but quashed the convictions and sentences and ordered a retrial.
The appellant appealed against this order.
HELD
(i) a re-trial should not be ordered unless the
appellate court is of
the opinion that on a proper consideration of the admissible, or potentially admissible evidence, a
conviction might result. Pascal Clement Braganza v. R .,
[1957] E.A. 152 (C.A.), applied.
(ii)when an appellant raises a question of law
which, if successful, must lead to his
conviction being quashed, he is entitled, as of right, to have that question
determined.
Case remitted to the Supreme Court for hearing
and determination.
MURIMI V REPUBLIC [1967] 1 EA 542
FACTS
The appellant was charged with stealing by a
servant contrary to s. 271 of the Penal Code and was tried
by the District Magistrate of Tarime and convicted.
HELD
(i) the magistrate should have acquitted the
appellant as the prosecution had failed to make out a case sufficient to
require the accused to enter into a defence;
(ii)s. 151 of the Criminal Procedure Code allows
a court to call a witness if his
evidence appears to be essential to a just decision and this is so even if it
results in strengthening the prosecution case; but s. 151 (permissive in
terms) must be read with s. 205
(mandatory in terms) of the Criminal
Procedure Code, and s. 151 should
not be used
to empower the trial court, immediately
after the prosecution has closed
its case, to call a witness in order to
establish the case against the accused, except possibly when the evidence is of a purely formal nature;
(iii) the Appeal Court will not reverse
a conviction on account of any error by
the trial court unless the error has in fact occasioned a
failure of justice, but the error of the trial
magistrate in refusing to acquit the accused under s. 205 had occasion ed such
a failure of justice.
Appeal allowed; conviction, sentence and other
orders quashed.
KAPUSYU S/O MWAIPINGA V MWAKYUSA(1969)H.C.D. n.
88
FACTS
The
dispute between the
two relatives involved
a parcel of
land, each claiming
it by inheritance. The
assessors in the
district court suggested
that as the
parties are related to the dispute
could be brought
to an amicable
solution by dividing
the land equally between
the two claimants.
Such a verdict
is consistent with
Nyakyusa customary law,
and the magistrate
accepted the advice
of the assessors, and held
accordingly.
HELD
“It
is clear that
any customary law
which dispossesses an
owner would be contrary
to the principle
of natural justice
…. The ‘Solomon’
ruling must be disturbed.”
On the facts
before the court,
including an earlier
litigation involving the
same plot of
land, the disputed
plot was awarded
to Mwendilomo, the respondent.
WAURA S/O KAMAU
V. GATOTO S/O MWANGI [1962] 1 EA
528
FACTS
The plaintiff, a Kikuyu, brought an action under
the Fatal Accidents Ordinance on
behalf of himself and the other dependants of his
deceased son, Maina. Maina had been killed by the defendant, who was subsequently convicted of manslaughter. The plaintiff
h ad also taken claimed compensation according to African law and
custom and obtained judgment
in the Naivasha African Court against the defendant. In the present suit
the defendant did not enter an appearance and when the case was
called for formal proof, it w as
argued on behalf
of the plaintiff that the value of the judgment of
the African Court should be
taken into account when assessing
damages under the Fatal Accidents Ordinance but that the judgment was
not a bar to the present claim.
Crown Counsel, as
amicus curiae, submitted that the plaintiff had an election to proceed
either in the African Court for relief
in accordance with African law and
custom or in
the Supreme Court
for relief under the Fatal Accidents Ordinance, but that he could not
pursue both forms of relief.
HELD
(i) it was clear from the evidence of the expert witnesses that payment of
compensation under customary law had the effect under that law of a
complete settlement so that
no other claim remained and this was so whether the
proceedings were brought
against the actual killer or against his father and whether the killing
was tortious or not.
(ii) under Kikuyu customary law the acceptance and payment of
compensation was subject
to a condition that all
further claims for
compensation in respect of the
death, against the killer and his family
or clan, were wiped out; therefore, when such a claim was litigated to the point of judgment then, so long as that judgment
stood, any further such claim was barred under African law and custom.
(iii) where the parties are subject to
customary law either form
of action is available, but if the customary law is invoked those proceedings would
finalise the matter.
(iv) it is well settled that judgment in
proceedings before an African court
has effect as res judicata under the Civil Procedure Ordinance.
Action
dismissed.
NYAMGUNDA
V. KIHWILI[1967] 1 EA 212
FACTS
A teacher at a school in Tanzania was accused of
having sexual intercourse with a girl. The girl informed her father that she
was pregnant by the teacher. The father raised an action in the PrimaryCourt
for compensation by the teacher, and was awarded the sum of Shs. 120/- as
compensation against the teacher. On appeal by the teacher to the District
Court the latter court held (the assessors dissenting) that it was not proved
that the teacher had caused the girl’s pregnancy, and allowed the appeal. The
father appealed further to the High Court on a number of grounds, the most
important of which was that the District Court should have applied the relevant
customary law in deciding whether the teacher had caused the girl’s pregnancy,
and that consideration of English cases and the IndianEvidence Act relating to
bonus and degree of proof should have been excluded.
HELD
(i) the
Indian Evidence Act does not apply, nor do English cases;
(ii) special rules for Primary Courts relating to
evidence are contained in Government Notice No.22/1964 (T.);
(iii) the
main rules applicable to these cases are paras. 183 and 190 of Government
Notice No.279/1963 (T.);
(iv) the burden of proving his innocence was upon
the teacher once the girl had named the teacher as the father of the child;
(v)corroboration of the girl’s evidence was not
required.
Appeal
allowed.
JUMANNE S/O RAMADHANI V.
R(1970)HCD.N.75
FACTS
The
appellants were convicted
in Primary Court
of receiving stolen
property and cattle theft
respectively.
HELD
“There
is a fundamental
objection to the
trial in that
the assessors, who gave verdict,
had not heard
any part of
the evidence. It
is true that
they were in court
on the first
mention of the
case, but the
assessors Mwanizi and Faraji
constitutes the court
with the trial
Magistrate when the
hearing began. They continued to
sit during the
hearing of the
prosecution case. Then
Twarindwa and Abdullah were
present for an
adjournment. When the
Defence commenced, the assessors
were Mbawan and
Bakari. Finally Twarindwa
and Abdullah gave verdict.
It is not
surprising that the
appellants thought that
the latter assessors were biased.
Now the decision
of the Primary
court is to be
that of a
majority (see Act 18/69
amending the Magistrate’s
Courts Act Cap.
537) and it
is provided that a
trial may not
proceed if all
the assessors are
absent either for
good cause or absent
themselves without cause.
(See section 8(3)
of the Act
as amended). It is
clear that the
judgment of the
trial Magistrate cannot
stand alone. Therefore
the trial was a
nullity. I need
hardly remark that
the purpose of
assessors is to
add a broad base
to the decision
of the Primary
Court. It would
lead to obvious
abuse if the assessors
were to be
changed in the
way that occurred
in this case. Accordingly the
convictions of both
appellants are quashed
and sentences set aside.”
ALFRED S/O JACOB V. R(1970)HCD. n.207
FACTS
The
appellant was charged
with and convicted
of stealing materials
entrusted to him by
a customer for
making new clothes
and repairs. His
conviction was upheld by the
District Court and
he appealed on
the grounds inter
alia that the Primary Court
which tried the
case had no
jurisdiction because the
offence was committed within
the local limits
of the jurisdiction
of another court.
HELD
The
fact that the
offence was committed
within the local
limits of another court
does “not deprive
the Primary Court
of jurisdiction; s.
19 (1) (b) of
the Third Schedule
to the Magistrates’
Courts Act (Cap.
537) also confers jurisdiction upon
a court within
the local limits
of whose jurisdiction
the appellant (as in
the present case)
was in custody
on a charge
for the offence.”
Appeal dismissed.
MOHAMED STAMBULI V SELEMANI(1968)H.C.D.n.357
FACTS
This
was an application
for the revocation
of letters of
Administration of a
deceased’s estate, under
the Probate and
Administration Ordinance, Cap.
445, section 49. Proceedings
begun in the
Primary Court to
settle the estate
ended in an equivocal
way. The present
respondent, acting on
legal advice that
those proceedings were
outside the jurisdiction
of the Primary
Court, brought a
petition in the High
Court for a
grant of Letters
of Administration and
this was granted. Meanwhile, present
applicants, anxious to
protect their interests,
had brought an action
in the District
Court, which asked
the District Administration and
this was granted. Meanwhile,
present applicants, anxious
to protect their
interests, had brought an
action in the
District Court, which
asked the District
Administrative Officer to
take possession of
the estate. Applicants
now seek revocation
on the grounds that
the original petition
was false, in
that (1) respondent
is only halfsister
of deceased; (2)
deceased was the wife of
applicant Stambuli up
to her death;
(3) applicant Saudi
is a whole
blood son of
deceased’s brother Husein.
HELD
(1)
Primary Courts have
no pecuniary limits
to their jurisdiction
in the administration of deceased’s’
estates, where the
applicable law is
customary or Islamic law
and the estate
is not governed
by the Marriage,
Divorce and Succession
(non-Christian Asia tics)
Ordinance (G.N. 320 of 1964).
(2)
Applicant failed to prove
that respondent was
not whole blood
sister of the deceased, and
the onus is on
him to prove
it.
(3)
Deceased was married
to applicant Stambuli;
the onus is therefore
on respondent to
prove a divorce.
[Citing Ali Omar
Mote v. Ali
Siraj (1959) E. A.
883]. Although deceased
“married” two other
persons after leaving Stambuli, there
was no firm
evidence of any
valid form of
divorce.
(4)
Evidence was brought to
show that applicant
Saudi was illegitimate
since his mother
was already pregnant with
him when she
married Hussein, the
deceased’s brother. Although Islamic
law presumes a
child born within
6 months of
marriage is illegitimate
unless acknowledged by
the father, the
Evidence Act 1967, s.121
states that birth
during marriage is
conclusive proof of
legitimacy. Even if the
Evidence Act does
not supersede Islamic
law on this
point, Husein acknowledged
Saudi as his
son.
(5) As
both applicants have
interests in the
estate, the proceedings to
obtain the Letters
of Administration were
defective. However, it seems
that no useful
purpose would be
served by revoking
the existing grant;
but it should be
qualified by attaching
thereto a declaration
of the beneficial
interests of the present
applicants as found
by this Court.
So. Ordered; costs
to be borne by
the estate.
CASE V. RUGURU[1970] 1 EA 55
FACTS
The plaintiff, the owner of a house in Nairobi,
claimed an order declaring that
the defendant had no
right to occupy the house. The defendant
alleged that she and the plaintiff were
married under Embu or Kikuyu custom and
that she was residing
on the premises as the lawful wife of the plaintiff.
The plaintiff, a European, gave evidence
to the effect that he was married in February 1956 to a European widow and that the
marriage still subsisted. He admitted living with the defendant in the house
and paying about Shs. 3,000/- to the
defendant’s family as
part of a dowry. The defendant’s father alleged that he received Shs.
2,000/- towards an agreed total of
Shs. 9,200/- as dowry and gave evidence to the effect
that in Embu custom the marriage ceremony between a n Embu woman and a man of another
tribe or race has not been completed
until half of the dowry is paid and the ceremony of “Ngurario”, the
slaughtering of a
ram, performed. He admitted that
the ceremony of “Ngurario” had not been
performed and that less than half of the dowry
had been paid.
HELD
(i) the plaintiff was the sole registered owner
of the suit premises;
(ii)the plaintiff and the defendant were not
legally married;
(iii)the defendant could not therefore base a
claim of occupancy on the ground of being the plaintiff’s wife;
(iv)the
plaintiff was entitled to
terminate the permission of the defendant to occupy the suit premises.
Judgment for the plaintiff for an injunction and
costs.
ALAI V. UGANDA [1967] 1 EA 596
FACTS
In an appeal to him from a
conviction of adultery by a magistrate grade II, a chief magistrate stated
a case for the opinion of the
High Court on a point of law. The
adulterer and adulteress and her husband
(the complainant) were all Muslims and the marria ge between the adulteress and
her husband was by
Muslim rites. The short point of
law was whether the offence of adultery (s. 150A Penal Code) applies to
all types of
marriage or whether
it is restricted to monogamous marriages only and does not apply to p
otentially polygamous marriages
(including Muslim marriages) because of
the definition of “husband” and “wife” in s. 4, Penal Code.
HELD
(i)“any
married woman” in s. 150A Penal Code means any woman who is married to
any man irrespective of the form of
such marriage; provided that such marriage has been
conducted in one of the forms recognised by
the people of
Uganda, including marriages
according to the custom of the
people;
(ii)the section 150A Penal Code uses the words
“any married woman”
so that the definition of “wife” in s. 4 is not relevant.
Appeal remitted for disposal on its merits.
RE KAMATA[1967]
1 EA 64
k
FACTS
The applicant, an African widow aged about
twenty-seven, had brought proceedings
under the Fatal Accidents Act on behalf of herself and
her infant son aged two, as dependants of her late
husband. In those proceedings a
settlement was approved by the
court under which the defendants paid Shs. 40,000/- into court to the credit of
the infant in discharge of their liability to him.
The applicant then applied in these proceedings for directions regarding the management of this fund.
HELD
(i)having regard to the age of the infant and
the inexperience of the widow the entire
fund (after deduction of costs) to be paid into a savings account with a building society in
the joint names of the applicant as trustee of the fund
and the Registrar of the High Court;
(ii)the income
to be paid to the applicant for the maintenance of the infant;
(iii)the custody
of the infant to be given to the applicant;
(iv)the applicant to have liberty to apply;
(v) the position to be reviewed and reported on by
the Registrar after three years. Directions issued.
MWAGIRU V MUMBI[1967] 1 EA 639
FACTS
The plaintiff sought a declaration that there
was a valid and subsisting
marriage between himself and the
defendant by Kikuyu custom, both parties being Kikuyu. The
defendant alleged that no such marriage existed because she had not given
her consent and
hadn't even been present at the essential ceremony. She admitted that
she had lived with the plaintiff at his
house for a short time but claimed that she had been forced into doing so
by her
father. She had gone through a
civil marriage ceremony with another man
with whom she
had a longstanding association a
short time after she had escaped from
the plaintiff; and she alleged that she was in fact married to this man and not to the
plaintiff.
HELD
(i) the
signifying of consent by
the bride is necessary at two
stages of the ceremonies which are vital to a regular Kikuyu customary marriage;
(ii)on
the evidence the defendant was not present and consenting at at least
one of these stages, and the plaintiff had therefore failed to prove his case.
Case dismissed with costs.
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