Ibrahim Kazi v. Emmanuel Laurian and Raymond Laurian Civ. App. 27-M-67, 22/11/68; Seaton J.
In a civil case in 1960 judgment was entered in favour of the appellant against the first respondent. The judgment – debt was not satisfied and as a result, the undivided shamba which the first and second respondent and another brother had inherited from their father was seized and sold. After the sale, the second respondent sent a sum of money to the court with a request that the sale be set aside. The primary court then made an order that the shamba be divided into three parts and that of the judgment debtor, the first respondent, be sold. The District Court held that the shamba was wrongly sold and that the auction-buyer was guilty of unreasonable delay in taking steps o enter into possession of the shamba and that the sum owing having been paid into court, the sale should have been set aside. Appellant challenged the order.
Held: (1) “I am not convinced of the District Court’s jurisdiction to make this order. There was no evidence that the shamba was being run on a partnership basis. Even if the three brothers held undivided interests in the shamba there would be no partnership without their farming it or sharing its profits on a joint basis. However, the District Court, after the hearing of the objection, was clearly attempting to give effect to the primary court’s order that the shamba be divided into 3 parts and that of the judgment-debtor sold. Such an order appears to be reasonable and within the posers conferred by the Rules on primary courts. It is impossible to ascertain from the records available whether an application was made within 21 days as prescribed by Rule 85 of the Rules for setting aside the sale ordered by the primary court. But this Court is entitled to follow the maxim Omnia rite praesumuntur esse.” (2) “As will be noted from the provisions of the Schedule to the Magistrates courts (Limitation of Proceedings under Customary Law) Rules 1964, Ibrahim has a 12 year period from the date of the decision or order of the primary court in Katerero Civil Case No. 66 of 1960 in which to enforce such order or decision. It is after the expiry of such period that his delay may be deemed unreasonable and proceedings in execution will be barred.” (3) “In all the circumstances of this case, I am of the view that, even if the District Court acted ultra vires, no injustice has been occasioned thereby. I would accordingly uphold its order with the clarification that the sale of the shamba be set aside and Ibrahim be at liberty to apply, as provided by the rules, for enforcement of the Primary Court’s order for sale of the judgment-debtor’s shamba and payment thereafter to him of the decretal amount (including any interest or cost, if such has been provided by the decree).” (4) Appeal dismissed.
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