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.