Mtuse Itumo v. Mung’aa Mkula. (PC) Civ. App. 65-D-66; 25/11/69; Saidi J.

Mtuse Itumo v. Mung’aa Mkula. (PC) Civ. App. 65-D-66; 25/11/69; Saidi J.

The parties in the dispute are Kambas living in Tanga. The appellant sued his mother-in-law for return of bride price. The mother –in-law set up a counterclaim for blood-money. It was not disputed that the appellant had married the respondent’s daughter some years ago and paid the brideprice of 8 cattle, 12 goats and Shs. 64/- The couple had several children. It was not disputed that after his marriage the ppellant killed another child of his mother-in-law. He was imprisoned for one year on account of this. As a result of the killing the marriage broke down and his wife left him and took all the children to her mother. It was accepted in both courts below that under Kamba law, the whole bride-price was refundable if the wife left the husband and took the children with her. If was also accepted that a claim for blood-money was maintainable under Kamba law, if a relative was killed by a stranger. The mother-in-law claimed 14 cattle as blood-money. This occurred about 10 years ago. The record of the local court could not be produced, but a letter was found, written by the Chief Jumbe of Mknga Local Court to another jumbe indicating that the then District Commissioner had asked him to persuade the mother-in-law to accept half the claim, since the appellant had been imprisoned for a year. The parties accepted the contents of the letter, but denied that the reduction had been agreed to. Before the claim for blood money was settled, the appellant sued for return of bridewealth. A decree was later obtained in the suit for blood-money but was not executed until the present suit was brought, and it appeared in the present suit as a counter-claim. The district magistrate adjusted both claims and held in the result that the appellant had to pay his mother-in-law a balance of I cow and 3 goats, or 15 goats as blood-money. Against this finding the appellant appealed to the court.

            Held: (1) The claim for brideprice was not time barred, nor was the claim for blood-money, as it had been lodged in time but remained unexecuted, only appearing in this suit as a counter-claim which it was not. (2) “Amongst mot African tribes claims for blood – money was common in the past and these were taken to be compensation for the loss of a relative who met his death at for the benefit of the family or clan. His death meant a loss and if the death was caused by another person blood-money was claimed to replace those services the deceased would have rendered. Scales for blood-money were therefore set up and these were followed at all times. Blood – money is still being claimed by some tribes in several parts of Africa. Amongst the iteso of Uganda a person who kills another pays 5 cattle or Shs. 500/- as blood-money (see “Uganda” be H.F. Morris

and J.S. Road, page 313). Pleed money is always claimed whether the killing was intentional or accidental. It is not however claimed where the killer is executed. In Tanzania blood-money used to be claimed amongst most of the tribes. The Local Government Memoranda No. 2 (Local Courts), 1957, made provision in paragraph 81 of Part 111 for recovery of blood-money. The paragraph reads: - “81. Blood money. – Claims for blood money can be heard in the local courts in certain circumstances only. No claim lies: - (1) unless local customary law has always allowed it; (2) it sentence of death has been carried out on the accused; (3) where the person accused has been acquitted by the High Court, unless fresh evidence becomes available which was not available to that court or unless the person acquitted later admits his liability before the local court; (4) where the accused has been imprisoned, until he has been released. The length of time he has been in prison should be taken into consideration.” Claims for blood-money were not maintainable where sentence of death had been passed and carried out or where the person accused had been acquitted by the High Court unless fresh evidence became available or the accused person admitted his liability before the local court. Provision was also made to the effect that the length of prison sentence served should be taken into account to reduce claims for blood-money but the Memoranda did not attempt to fix the amount of blood-money. So far there are in Tanzania only two cases of blood-money reported. These are Sembo Gwaru v. Gudada d/o Ganugwanda (Central Court Appeal No. 12 of 1955) and Abdallah Misai v. Mnsasasu Tandu and Muua Simba (Central Court Appeal No. 34 of 1955) appearing in Local Courts Digest Nos. 92 and 167. Both claims appeared to have failed as it had not been established that the defendants were responsible for the death of the victims. Claims for blood-money may be considered to be out o date in European legal concepts but even in modern Europe and America blood-money in other forms is still claimed. In fact, claims for damages by the dependants of a man who dies in a motor accident are definitely a form of blood-money. The damages, like blood-money, compensate the dependants for the services or benefits they would have obtained from the victim if the had not been killed. Under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, Cap. 360, claims for damages are allowed for the benefit of the dependants of a person whose death has been caused by the wrongful act of another person. The law does not cover deaths caused by wrongful acts other than those arising from motor accidents where damages could equally be claimed for the benefit of the dependants of the victim. Claims for blood-money seem to have been dropped by most tribes in Tanzania, but I think they would, if revived, go a long way to cutting down the mounting wave of homicide. In the last two or three year’s homicide in Tanzania has grown to the alarming figure of over 800 per annum. Most of these turn to manslaughter caused by drunken brawls. If the killers were subjected not only to prison sentences but also to the payment of sizable blood-money, I think they would try to avoid becoming involved.” (3) Appeal dismissed.