Blogger's note: Elsewhere, This case has been erroneously cited as Ruzebe Sweya v. Bural Lesse (1967) HCD n. 21
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(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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