Ruzebe Sweya v. Jacobo Kitale (PC) Civ. App. 116-M-68, 19/8/68.
The plaintiff claimed that the respondent’s cattle had grazed on his shamba, damaging cassava. Witnesses testified that they saw the cattle on the shamba and that they were driven off by the defendant’s children.
Held: (1) The primary court has jurisdiction in this type of tortuous liability since it comes within the phrase ‘customary law’ under s. 14 Magistrates Courts Act Cap. 537. [Citing Alli Kindoli v. Tuzihirwe Pendaamani No 220 Vo. IX Digest of Appeals from Local Courts (1962) p. 7. a case of compensation for damage to crops, and Civil case. No. 27 of 1968 in the Nyamwigura Court (P.C Civil Appeal No. 148 of 1968 unreported) in which Mustafa J. upheld an award of compensation for destruction of crops and plants under customary law of North Mara District]. (2) The Magistrate misdirected himself in saying that the burden was on the defendant to prove there were no cassavas. Under Rule 12 ) of Jurisdiction of Courts (Rules of Evidence in Primary Courts ) Regulations 1964 the burden is on the person who claims unless the claim is admitted by the other party. (3) Decisions of the primary and district courts upheld. Defendant entitled to damages.
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