Nuakyagi v. Mbiso (PC) Civ. App. 138-D-1970; 3/12/1971, Biron J.

 Nuakyagi v. Mbiso (PC) Civ. App. 138-D-1970; 3/12/1971, Biron J.

The plaintiff sued the defendant in the primary court claiming the refund of Shs. 600/=, given to the latter in 1956. It was not altogether clear what the Shs. 600/= represented, as there were two versions, one being that the plaintiff at first lent the defendant or his father Shs. 200/= and then handed him an additional Shs. 400/= with which to buy cattle for him, the other that the whole sum of Shs. 600/= was handed him an additional Shs. 400/= with which to buy cattle for the plaintiff. The defendant admitted that he received Shs. 600/= but his case was that he had refunded it to the plaintiff in the form of one cow valued at Shs. 200/= and the balance of Shs. 400/= in cash. The primary court sitting with assessors, found for the plaintiff as it was not satisfied that the defendant had refunded the Shs. 600/= received by him. The District Court allowed the appeal on the ground that plaintiff’s claim was time –barred both under Wanyakyusa custom and the Magistrate’s Courts (Limitation of Proceedings under Customary Law) Rules 1964.

            Held: “I am in no position to confirm or otherwise the magistrate’s direction on Wanyakyusa custom, but his direction on the law of limitation as laid down by the Rules referred to, is impeccable. Whether the transaction comes under item 2 of the Schedule to the Rules referred to, that is: “Proceedings for money lent or money due for property sold and delivered” or as is more likely, under Item 5, which reads: “Proceedings for damages for breach of contract or to enforce a contract, other than contracts of  or relating to marriage, separation or divorce  - (a) if the contract is in writing, (b) if the contract is not in writing, “the limitation period is three years.”