Cosmas v. Faustini (PC) Civ. App. 81-A-71; 4/10/71; Kwikima Ag. J.

 

Cosmas v. Faustini (PC) Civ. App. 81-A-71; 4/10/71; Kwikima Ag. J.

The appellant claimed damages for defamatory words which the respondent is said to have uttered to him. In a previous criminal prosecution arising out of the same incident the high court had set aside the conviction of the respondent and acquitted him of the charge. In the present proceedings the primary court gave judgment for the appellant. The words “Cosmas si mtoto wa Merinyo ni mtoto wa Mlyahoro mamake alimleta nje” were found by

the gentlement assessors and the magistrate to be defamatory. The innuendo was said by the appellant to be that he was an illegitimate child and that his mother was a prostitute. The respondent was ordered to pay to the appellant a goat and a cow or Shs. 250/= by way of damages. The court applied Chagga customary law. That decision was reversed on appeal. The District magistrate holding the matter was res judicata in view of the respondent’s acquittal in the criminal case.

            Held: (1) “The law for crime only concerns itself with libelous publications, not defamatory utterances the learned District magistrate misdirected him in law when he inadvertently likened the charge of abusive language to that of criminal libel. But even assuming that he had properly digested the contents of the appeal judgment in the criminal case, the appellant’s argument would still hold strong. The appellant argues in one of his grounds that:- “The respondent was ……….. acquainted for the reason that the words uttered by him, and the words which are not disputed, could not have caused a breach of the peace as charged. He has never been sued by me in any other court for a claim similar to this. The suit was entirely fresh and therefore the question of res judicate (could) never arise ………..” it must be respectfully pointed out that the position in law is as set out by the appellants the parties were before a civil court and a criminal case based on the same facts cannot bar a subsequent civil claim based on the very same facts. on this point the court is greatly indebted to the appellant counsel who cited a source laying down the position so clearly that this court can do no better than to cite the source;- “The finding of a criminal court is not conclusive in a civil court when the same matter is in issue in the civil court and the later is bound to decided the question for itself. (A. I. R. COMMENTARIES C. P. C. Vol. 1 6^th Edition).” It need hardly be pointed out that the respondent’s argument that the matter between him and the appellant was res judicata in view of his acquittal was wrongly upheld.” (2) Appeal allowed