Daniel v. Kanyok (PC) Civ. App. 80-A-70; 21/7/71; Kwikima Ag. J.

Daniel v. Kanyok (PC) Civ. App. 80-A-70; 21/7/71; Kwikima Ag. J.

            The appellant was the complainant in a criminal case in which the respondent was convicted but acquitted on appeal to the District Court. The Appellant had complained in the Criminal case that the respondent had destroyed his trees which marked the boundary between their adjoining pieces of land (vihamba). The appeal was allowed because the trees were found to be growing on land the title to which was a disputable matter. The appellant then commenced this action, seeking to recover damages for the destroyed trees, the expenses which he incurred in the conduct of the criminal case and the loss of business suffered in the same process. Out of the total sum of Shs. 3,000/- clamed, the Primary Court allowed the appellant Shs. 1,455/- being damages for “disturbance” in the conduct of the criminal case. The respondent appealed to the District Court which allowed the appeal because the learned magistrate found that the disputed piece of land belonged to the respondent. On appeal to the High Court;

                        Held: (1) “The record shows that the learned primary court magistrate who tried this case embarked on a judgment even before he had sought and obtained the opinion of the assessors. This was contrary to the express provision of section 8 A. Cap. 537. It is a rule that should the magistrate choose to differ with the assessors, he must record his reasons in his judgment for doing so. (Shuma v. Kitaa) 1970 H. C. D. 241. He could not possibly do this without first seeking and recording the assessors’ opinion and then writing his judgment and explaining why he disagreed or agreed with the assessors    

            as the case may be. That it is incumbent upon the magistrate to record each assessors’ opinion was laid down in Ralang Mumanyi v. Mambura Mwita 1969 H. C. D. 9 ……… The observation in that case together with the necessity to seek and record the opinions of assessors before writing a judgment are provided for under section 8 a of the Magistrates’ Courts act. Cap. 537 which reads as follows :) “[E]very such assessor shall be required. Before judgment to give his opinion as to all questions relating to customary law in issue, in or relevant to, the proceedings and the magistrate shall record the same.” In the present case all the learned trial magistrate did was to record in the middle of his judgment that:- “The assessors are of the view that following Criminal Case No. 170/68 the plaintiff Daniel is entitled to Shs. 1, 455/- only.” This procedure was o bad that it was capable of occasioning failure of justice.” (2) “The District Court went completely off-tangent in determining the respondent’s appeal against the Primary Court’s decision and order. In his judgment the appeal magistrate confined himself to the issue whether the land belonged to appellant or the respondent. He resolved that the land on which the disputed trees grew was the respondent’s and allowed his appeal. This decision was bad because it was based on an issue which was not before the court. The issues before the court were whether the claim was maintainable, whether damages sought were specified or general and if specified whether they had been prayed according to law and finally whether the primary court had the jurisdiction to hear and determine the suit or not.” (3) [T]he claim was frivolous abinitio. A suit founded on the disturbance resulting from a criminal case is always brought by way of a claim for damages for malicious prosecution. In this case it was the appellant who did the prosecution by complaining against the respondent. If anyone was entitled to damages for being maliciously complained against in a criminal case, it was the respondent who was even remand and fined before being acquitted on appeal. The appellant had nothing to claim from the respondent because any expenses he may have incurred in summoning witness were rightly chargeable against the public purse. They could not for this reason be held to be the responsibility of the respondent. It is not surprising therefore that eh primary court dismissed that part of the claim touching witnesses’ expenses in the criminal case.” (4) “The primary court as not competent to determine this suit which was one for the tort of malicious prosecution. The civil jurisdiction of Primary Court is confined to:-“ (i) where the law applicable is customary law or Islamic Law …… (ii) for the recovery of civil debts, rent or interest due to the Republic, the Government or any Municipal, town or district council ……… (iii) For the recovery of any civil debt arising out of contract if the value of the subject matter does not exceed one thousand shillings ….  (Section 14 Magistrates’ Courts Act cap. 537.” It was under this very provision that Mustafa, J. (as he then was) held in the case of Walimu Jilala v. John Mongo, 1968 E. C. D. 81 an cattle trespass, a common law tort, was not triable by a primary court. By simple analogy I would hold malicious prosecution, another common law tort to be outside the pale of the primary court.” (5) “The appellant refereed vaguely to the business he lost during the conduct of the criminal case as Shs. 2,379/00 without adducing evidence as to how specifically he arrived at that figure, the claim for loss of business earnings ought to have been proved strictly. Merely to allege a figure without supporting it by evidence as the appellant did cannot suffice. The appellant did not establish his claim even if his suit was held to be good and within the jurisdiction of the Primary Court.” (6) Appeal dismissed.