281 kilale so mwakajinga v enos so mwaikambo pc civ

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281. Kilale s/o Mwakajinga v. Enos s/o Mwaikambo , (Pc) Civ. App. 130-D-67; 18/8/67, Saidi J. Plaintiff loaned defendant Shs. 210/- in 1958. Shortly thereafter, defendant’s house burned down through no fault of the defendant; in the fire, the loaned money was destroyed, along with other property of the defendant. In 1966, plain- tiff sued in Primary Court to recover the loan; no showing was made as to the
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reason for the delay in bringing the action. The decision in District Court was for the plaintiff, the defendant appealed out of time. Held: (1) The appeal, though out of time, was heard “in the interests of jus- tice.” (2) “(I)t would be inequitable to compel the (defendant) to refund the money to the (plaintiff), because it was destroyed by an unfortunate event which was not anticipated by either party and was outside the control of the (defendant).” (3) “There is another point which stands in favor of the (defendant). It is definitely clear that the claim was time-barred and that both courts below in advertently overlooked this fact.” (4) Because neither party was responsible for the loss of money, it is “equitable for each party to pay his own costs.” The Court did not specifically deal with the matter of whether the suit, which had been brought initially in Primary Court, turned upon an interpretation of customary law. (1967) H. C.D. - 80 – 282. Selemani s/o Hoti v. Iddi s/o Omari , (PC) Civ. App. 73-D-67; 30/9/67, Saidi J. Plaintiff left 58 cattle in the charge of defendant, for herding. All the calves born were to be the property of plaintiff; all milk was to be taken by the defendant. On- ly 52 cattle were returned, the other 6 having been lost. Plaintiff claims for the missing 6 head of cattle. Held: There was nothing in the record to show that defendant had fraudu- lently disposed of the missing cattle; nor was he in any way responsible for their loss. “In the absence of such evidence it would be inequitable to order (defen- dant) to pay back these 6 cattle when they got lost in the bush without his fault.” 283. Omoro Nyangerere v. Matitiro Machango , (LC) Civ. App. 13-M-65, 14/8/67, Cross J. Defendant received twelve head of cattle as dowry for his daughter, who married plaintiff. They remained married for some time without having children, but in
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1963 the wife left the matrimonial home. Plaintiff then brought this action in Pri- mary Court for return of the cattle. Held: Since no children had been born of the marriage, it was proper to order, as the District Court did on appeal, that only nine of the cattle be refunded. {Local Customary Law (Declaration ) Order, 1963, Rule 52} Appeal dismissed. 284. Mkhandi Ghumpi v. Fatuma Salum , (PC) Civ. App. 72-D-67, 28//8/67, Ham- lyn, J Plaintiff was assaulted and driven away from her home by her husband four times during 1966. On three occasions she went to the home of her parents and was ordered by her father to return to her husband. On the fourth occasion, she sued for divorce in Primary Court. The divorce was granted, the court ruling that plaintiff’s father was not obliged to return the dowry.
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