Held 1 the appellant did not build his house

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Held: ( 1) “The appellant did not build his house partially upon the complai- nant’s land by using violence in any of the ways provided by P.C. s. 85 “Convic- tion quashed. (2) “Strictly speaking the order for compensation ought to be set aside, but as there will no doubt have to be civil proceedings to verify the boun- dary and require the accused to remove back to his own land, I shall allow that order to stand and to be taken into consideration in any such civil proceeding.”
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284. Stephano James v. Fabian Nkani , (PC) Civ. App. 47-M-68, 29/5/68, Seaton J. Plaintiff obtained a judgment in Primary Court in June 1965 for recovery of a shamba. In August 1967, defendant applied to the District Court for leave to ap- peal out of time. The magistrate disbelieved defendant’s explanation that he had not been present when the Primary Court judgment was delivered and that he was waiting to hear the disposition of the case. The magistrate cited Amani Cho- go Chacha v. Rioba Nyamtara, High Court Digest, Vol. 1, No. 10, case No. 433, in which Mustafa J. commented that it is against public policy to allow matters which have been decided to be re-opened many years later. Held: In the case cited, the High Court’s comment was with reference to a judgment which had been given 18 years earlier, whereas in this case the appeal was only tow years after the judgment. Nevertheless, the same principle is appli- cable. Appeal dismissed. 285. Gokar Damji & Sons v. Gulamhussein Saleh Haji , Civ. App. 30-D-67, 3/6/68, Georges C. J. On 4 May, 1967, a decree was entered in favour of plaintiffs for approximately Shs. 20,000/-. On 7 September, 1967, an order was made under Order 20, Rule 11, of the Civil Procedure Code 1966, allowing defendants to pay by installments of Shs. 250/- per month, interest at 6% per annum. In the trial court’s second or- der, reference was made “in the introductory part” to the decree of 4 May, 1967, but “there is no reference to it in the substantive part,” according to the High Court’s summary. Plaintiffs appealed the lower court’s disposition of the case, saying there were aggrieved by the “order made by the learned Senior Resident Magistrate on the 7 th September 1967.” Held: (1) The order of 7 September cannot be considered as part of the original decree in the suit, on the facts of this case. (2) An order under Order 20, Rule 11 may not be (1968)H.C.D
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- 103- Appealed to the High Court. Section 74 of the Procedure Code specifies the or- ders of Resident Magistrates and District Courts from which appeals to the High Court are allowed. A further specification, of orders “under rules from which an appeal is expressly allowed by rules,” is contained in Order 40, Rule 1. In neither place, nor in any other law brought to the attention of the Court, is an order under Order 20, Rule 11, made appeal able. Plaintiffs’ appeal dismissed.
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