Loule v. Ndelekio (PC) Civ. App. 121-A-68; 15/5/71; Jonathan Ag. J.

Loule v. Ndelekio (PC) Civ. App. 121-A-68; 15/5/71; Jonathan Ag. J.

The appellant was successful in recovering a sewing machine he had lent the respondent some time in the early fifties. The Primary Court ordered the respondent to give appellant another machine or to pay him Shs. 1,200/- being the value of the machine. The District Court reversed the decision on the ground that the claim was time barred [vide Customary Law (Limitation of Proceedings) Ruled, 1963 G. N. 311/64]. Appellant appealed.

Held:  (1) “Assuming that the nature of the remedy sought in this case is covered in the schedule to the Rules, it would seem that the first appellate court had little evidence to go by in holding that the original proceedings were time barred, because time started to run out when demand was fist ineffectually made or when the respondent last admitted having the appellant’s machine, whichever was the latter on which there was no evidence led ……….. the district court could not properly have allowed the appeal solely on the ground of limitation.” (2) “If the proceeding did not fall under the preview of the schedule, then paragraph 5 of the Rules would allow the court to dismiss the claim if there has been unwarrantable delay in bringing it and where just determination of the claim would be prejudiced by the delay. Proceedings outside the schedule would be more readily admitted that those falling within it. Adopting this view, the trial court was not wrong in not rejecting the plaint as time-barred.” (3) “It is not proper that the respondent should be ordered to give the appellant another machine; it should have been an order putting the appellant into possession of the same machine or giving him its value in cash.” (4) There was no evidence that Shs. 1,200/- was the value. Value assessed at Shs. 600/-. Appellant may opt Shs. 600/-.  (5) Appeal allowed.