82. Mtatiro Mwita v. Mwita Marianya, (PC) Civ. App.
12-M-67, 16/1/68, Georges
C. J
Plaintiff received one bullock from defendant in exchange for some finger millet.
The bullock died two months later of unknown causes. Both parties belong to the
Kuria tribe, and this type of contract is well known in tribal custom. The custom is
that if an animal so exchange for millet dies within one year, the meat and skin
may be returned to the other party who is then obliged to replace the animal.
Plaintiff followed this procedure and then brought this suit for another bullock.
The primary court failed to follow the customary rule and decided for the defendant
citing Tarime. District Court Civil Appeal No. 4 of 1966, in which district court
refused to follow the custom.
Held: (1) “If persons of the same tribe enter into an agreement well known
to tribal custom under which the terms are prescribed, these persons must, in the
absence of evidence to the contrary, be understood to be contracting in accordance
with these terms.” (2) Relevant customary law must be applied if it
is”……applicable and is not repugnant to justice or morality or inconsistent with
any written law.”
Joseph Constantive v. Losilale Ndaskoi, Civ. Case 18-A-67, 28/6/68, Platt J.
Plaintiff agreed to build a house for defendant and, in return, defendant was to
give plaintiff a piece of land. Both are Waarusha. Plaintiff entered the land and
carried out a number of improvements. He failed to build the house for the defendant.
Defendant forcibly ejected plaintiff from the land. Plaintiff, in an action
brought initially in the High Court, claimed compensation for unexhausted
improvements,
including permanent trees and some houses and produce, under
Arusha law. In earlier proceedings, defendant had claimed title to the land on the
basis of Arusha Law.
Held: (1) The dispute is governed by Arusha law, because (i) plaintiff
based his claim upon it and not upon the Law of Contract Ordinance; (ii) both
parties had accepted that the agreement was governed by customary law; and
(iii) defendant’s claim for title of the land had been governed by customary law,
and it would now be illogical to decide the question of unexhausted improvements
on a different basis.
288. Ephraim Obongo v. Naftael Okeyo, (PC) Civ. App. 98-M-68, 21/5/68, Seaton
J.
Defendant, a lorry owner, used to collect cassava from plaintiff for selling. On one
occasion, his lorry – driver and turn boy went to plaintiff to collect some bags of
cassava; plaintiff refused to deliver the goods, demanding that they first produce
some empty cassava bags which they had evidently taken another day, or some
money. They returned to defendant’s wife, who gave them 24 bags and Shs.
190/-, and sent a not promising that everything would be taken care of when her
husband returned from a journey. Plaintiff received no more money, and sued in
Primary Court for the value of the cassava he had given them, and for some other.
(1968)H.C.D.
- 104 –
Empty bags not returned, less the money and bags received. It was not disputed
that the suit involved less than Shs. 2000/-, the jurisdictional maximum for suits in
Primary Court. The court held that the claim should be against the wife and dismissed
the suit; the District court, on appeal, gave judgment against defendant.
On appeal to the High Court, defendant argued that the Primary Courts’ jurisdiction
was limited to civil proceedings turning upon customary or Islamic Law, or
civil proceedings to recover in the words of the Magistrates Courts Act, section
14(1) (a)(ii) --- “civil debts, rent or interest due to the Republic”, or to the government
or any municipal, town or district council. He argued that plaintiff ’s was a
claim in contract which had to be brought in District Court. Plaintiff replied that
the words of the Act should be read “disjunctively,” giving the Primary Courts jurisdiction
in all cases of “civil debt” where the amount involved is within the jurisdiction
limit.
`Held: (1) The present case involves an issue of privity of contract, “a rather
subtle and technical point which perhaps Primary Courts could not deal with.
This may have been a reason for excluding civil suits based on principles of contract
from the jurisdiction of the Primary Court,” if that is in fact the effect of the
Act. On the latter question, however, the Court made no further finding.
(2)However, “(i)t has not been established to my satisfaction that a claim of this
nature could not have been brought under customary law.” It is a simple case of
a claim for goods delivered, “not … for breach of contract as such.” Also, despite
the difficulty of determining whether the wife, the lorry-driver and the turn boy
were acting “in the course of their employment” for defendant, “In suits between
Africans living within a local community and doing business amongst themselves
on a basis of trust, I consider it would not be in the interests of justice to import
technical notions of privity of contract and other such notions, unless clearly required
by the law to do so.” (3)_ There being no apparent reason why such a
case could not be settled under customary law, there is no reason not to accept
the District Court’s finding, supported by the evidence, that plaintiff had dealt
with servants of defendant whom defendant had probably authorized to act as
they did. District Court judgment for plaintiff upheld, with a minor variance as to
amount.
31. Fadhili v. Lengipengi (PC) Civ. App. 31-A-69; 16/11/70; Kwikima
Ag. J..
The appellant successfully sued for domestic animals and the offspring
entrusted to the respondent by the deceased appellant’s mother. The
District Court allowed the appeal of the respondent on the grounds that:
(1) the appellant sued only after his mother’s death and not during her
lifetime. The suit must have been based on “retold history from the
neighbours.” And anyway the respondent had reported the death of all the
animals to the deceased when she was still alive. (2) The claim could not
be sustained “without documentary evidence and without eye witnesses to
say that the goats and sheep did not die and that the appellant did not
report.”
Held: (1) “With due respect to the learned District Magistrate, his
reasoning is bad at law. The court which heard the witnesses found that
the respondent had received the stock from the appellant’s deceased
mother and had kept it till her death. If the animals had died while in the
appellant’s custody, the trial court found it improbable that the deceased
had been informed. After all it is easy to allege things in respect of
deceased persons since these persons cannot be called to refute them.”
(2) “In African custom business is transacted without documents. Writing
as such is an innovation which is only familiar to the sophisticated young
who have had opportunity to receive coaching in the ways of the
Whiteman. The appellant cannot be blamed for not acting during his
mother’s life, either. The reason is simply that the animals then belonged
to her and any claim by the appellant would not have been entertained in
a court of law. The appellant had capacity to sue for the animals after
inheriting the from his mother. (3) Appeal allowed.
259. Felalon (Father) v. Kalinga (PC) Civ. Rev. 4-D-7a, 14/7/70; Hamlyn, J.
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.”
