The plaintiff claimed that the respondents cattle had

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The plaintiff claimed that the respondent’s cattle had grazed on his shamba, da- maging cassava. Witnesses testified that they saw the cattle on the shamba and that they were driven off by the defendant’s children. Held : (1) The primary court has jurisdiction in this type of tortuous liability since it comes within the phrase ‘customary law’ under s. 14 Magistrates Courts Act Cap. 537. [Citing Alli Kindoli v. Tuzihirwe Pendaamani No 220 Vo. IX Digest of Appeals from Local Courts (1962) p. 7. a case of compensation for damage to crops, and Civil case. No. 27 of 1968 in the Nyamwigura Court (P.C Civil Appeal
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No. 148 of 1968 unreported) in which Mustafa J. upheld an award of compensa- tion for destruction of crops and plants under customary law of North Mara Dis- trict]. (2) The Magistrate misdirected himself in saying that the burden was on the defendant to prove there were no cassavas. Under Rule 12 ) of Jurisdiction of Courts (Rules of Evidence in Primary Courts ) Regulations 1964 the burden is on the person who claims unless the claim is admitted by the other party. (3) Deci- sions of the primary and district courts upheld. Defendant entitled to damages. 408. Nyamhanga Wansaga v. Mkami Bange , (PC) Civ. App. 120-M-68, 20/7/68, Mustafa J. Mkami claimed that he married the sister of Nyamhanga, and had paid 41 head of cattle as bride-wealth. Mkami was later convicted of cattle theft, and Nyam- hanga paid 5 head of cattle as compensation. When Mkami came out of prison he said he could not pay 5 head of cattle. As a result Nyamhanga took away his sister (wife of Mkami). Mkami claimed that the marriage was dissolved and that he was entitled to recover the whole of the bridewealth. Held: Nyamhanga had intended to dissolve the marriage by taking away his sister. Only 37 head of cattle were paid as bride-wealth and 13 head of cattle were paid as bride-wealth and 13 head of cattle were paid as compensation, leaving a balance of 24. Since the parties were married for six to seven years, Nyamhanga should only return 14 head of cattle. 409. Nyagobro Ginonge v. Chagha Gasaya, (PC) Civ. App. 151-D-67; 19/9/68, Hamlyn J. Appellant claimed the disputed plot of land as owner thereof. It was established that about ten years before the re-allocation she had left the disputed land and had gone to live in another area at a considerable distance there from, though she had left standing on the land a hut “of no great value”. There was no evi- dence that during the period of absence the land was worked or developed by her. The Village Committee allotted the land to respondent as result of which ap- pellant instituted these proceedings alleging that the land was hers and that res-
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pondent was a trespasser upon it. The Primary Court, Nyamawaga, gave judg- ment in her favour; this judgment was reversed by the District Court, North Mara.
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  • Fall '17
  • Dean Majamba

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