Hiza v. Shekefu (PC) Civ. App. 117-D-70; 27/11/71; Biron, J.

 

Hiza v. Shekefu (PC) Civ. App. 117-D-70; 27/11/71; Biron, J.

The plaintiff and defendant possessed and occupied adjoining parcels of land and the dispute is over about an acre lying between their shambas. The plaintiff’s case was that his father, assisted by him, had cultivated the disputed portion from virgin bush. His father died in 1966 and during plaintiff’s absence in 1968 the defendant encroached over his boundary and started cultivating the disputed shamba. The defendant claimed that as early as 1929 he was allocated a piece of land which included the disputed one. The primary court decided in favour of the plaintiff on the basis of the evidence of his witnesses and the omission of the defendant to appear at the mourning ceremonies and declare his title to the land in dispute when the plaintiff’s father died, in accordance with custom. The district magistrate disregarding the views of the two assessors who sat with him reversed the decision of appeal

            Held: “Although in primary court cases the decision is determined by the majority, that in effect the assessors if they are unanimous can overrule the magistrate, in a district court, as provided for by The Magistrate’s Courts (Amendment) Act 1969, the magistrate is not bound by the opinions of his assessors, as laid down in section 8A(2), which reads: ‘(2) In determining any proceedings in which a district court or a court of a resident magistrate sits with assessors, the magistrate shall not be bound to conform with the opinions of the assessors, but in any case in which he does not so conform the magistrate shall record his reasons therefore in writing.’ The magistrate has not however recorded his reasons for disagreeing with his own assessors.” Appeal allowed with costs.