Nlakawa and Another v. Naishu (PC) Civ. App. 109-A-68; 7/10/71; Kwikima Ag. J.

Nlakawa and Another v. Naishu (PC) Civ. App. 109-A-68; 7/10/71; Kwikima Ag. J.

The appellants jointly owned a herd of cattle, so did the respondent. The herds used do be tended in turns. When it was the appellants’ turn to tend the cattle, the respondent’s cow was stolen by thieves who broke the pen in the process. The respondent then sued the appellant in the primary court to recover the lost cow. The action was unsuccessful but successful on appeal had failed to prove that the respondent’s cow was in fact stolen.

Held: (1) “This was a serious misdirection in law. The onus of proving is always on those who make allegations.” (2) According to Chagga custom as set court by the leaned appeal magistrate himself the appellants would be liable to make good the stolen cow if it was shown that they were negligent of that they did not take precautions to prevent the theft or even that the appellants connived with the thieves. This had to be proved by the respondent. It was not for the appellants to prove that they were not to blame for the disappearance of the respondent’s cow”.

            (3) “All the witnesses whom the respondent called told the trial court that the cow was stolen. They even saw the opening in the boma. The spoor of the animal could clearly be seen, leading from this opening. The trial court saw these witnesses giving evidence and chose to believe them. The district Magistrate who allowed the appeal by the respondent did not say whether he disbelieved them or not. Instead he ignored their evidence simply because they were no called by the appellants. This was clearly another serious misdirection. His decision was bad at law and totally in defiance of the evidence on record. (4) Appeal allowed.