Axwesso v. Martin (PC) Civ. Rev. 3-A-71; 12/8/71; Bramble J.

 

Axwesso v. Martin (PC) Civ. Rev. 3-A-71; 12/8/71; Bramble J.

The District Magistrate to whom an appeal was brought adjourned the action for judgment. Instead of delivering the judgment he made an order for a de novo trial because in his words “persistent thoughts have kept haunting me by reason o the inescapable fact that one of the parties to the disputed shamba was a magistrate.” He then expressed fear that the proceedings were “tilted” somewhat in favour of the magistrate. At the hearing of the appeal none of these points were raised by any of the parties.

Held: (1) “The power to quash proceedings and order a de novo trial must be exercised judicially and this is done for example, where on facts disclosed in the proceeding the trial was a nullity or irregular. A magistrate cannot act on a mere feeling not supported by evidence and there has been nothing shown on the record to justify the order.” (2) “Even [if] the parties consented, the District Court has no power in its appellate jurisdiction to transfer a matter from a primary court to a district curt. Section 41 of the magistrates courts Act defines the powers of transfer and it reads: - “41 (1) where any proceeding has been instituted in a primary court, it shall be lawful at any time before judgment for (a) ……….. (b) the district court or a court of a resident magistrate within any part of the local jurisdiction of which the primary court is established, to order the transfer of the proceedings to itself or to some other magistrate’s court ……….. in any case where:- (11) there is reasonable cause to believe there would be failure of justice were the proceedings to be heard in the primary court. Provided that nothing in this subsection shall authorize (a) the transfer by a magistrate’s court of any proceeding which is required by law to be commenced in a primary court except to some other primary court.” (3) “[J]judgment had been already given so there could be no question of a transfer. Further the matter involved customary law and could only be determined in a primary court.” (4) “The district magistrate should deliver judgment on the merits of the appeal.