Zephrin Mgabona v. Jones Kalumuna. Civ. App. 163-M-69; 26/11/69; Seaton J.

Zephrin Mgabona v. Jones Kalumuna. Civ. App. 163-M-69; 26/11/69; Seaton J.

The objector appealed a second time against attachment of his property in execution of civil proceeding made under rule 17 of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, 1964. The appellant, the objector in the proceedings in the lower courts, asserted that his property had been improperly seized by the court, in execution of a decree which the primary court had given in favour of the respondent Jones against the appellant’s nephew, Martin s/o Andrea. The decree had been made in Kamachumu Civil Case No. 281/67 in which Jones, the present respondent, had sued Martin Andrea to recover a loan of Shs. 1515/-. By consent, judgment was given in favour of the present respondent Jones and it was in execution of this judgment debt that the property was seized which the present appellant/applicant Zephrin in now claiming rightful belongs to him. The primary curt heard Zephrin’s objection but decided that the property really belonged not to him but to the judgment debtor Martin. This decision was upheld by the district court on appeal but the district court noted in its judgment as follows:- “Although the primary court had no jurisdiction to try a case of such a debt of 1515/-, under s. 18 of Cap. 537 no revision can be entertained at this stage since the case was decided on 17.11.67 – now over 12 months. While I decline to distort the status quo, I shall deal with the matter in the form this application has been presented.”

            Held: (1) It appears to be correct, as the appellant Zephrin urges in his petition of appeal, that the primary court had no jurisdiction to hear the civil case No. 281/67 which was a claim for recovery of a loan of Shs. 1515/-. Section 14(1) of the Magistrates’ Courts Act, Cap. 537 sets out the jurisdiction of the primary courts. As was held by Mustafa, J. in the case of ENDWARD KALEMELA vs Muyebe Rwenjege, P.C. Civil Appeal No. 105 of 1967, the primary court was given jurisdiction under section 14(1) (ix) and (ii) in all proceedings of  civil nature where the law applicable is customary law or Islamic law or for the recovery of civil debts, rent or interest due to the Republic, the Government or any municipal, town or district council, but was given no jurisdiction to entertain claims like a loan between

private individuals. Since the decision in the last quoted case, section 14 of the Magistrates’ Courts Act has been amended by the Written Laws (Miscellaneous Amendment) Act No. 50 of 1968. The amendment adds a new sub-paragraph (iii) to subsection (1) of section 14, giving additional jurisdiction to the primary courts in civil proceedings – “(iii) for the recovery of any civil debt arising out of contract, if the value of the subject matter of the suit does not exceed one thousand shillings, and any proceedings by way of counter-claim or set-off therein of the same nature and not exceeding such value.” “It would seem that the Written Laws (Miscellaneous Amendment) Act No. 50 of 1968 has not affected the position as explained by Mustafa, J., namely, that a primary court has no jurisdiction to entertain claims like a loan between private individuals, unless such a loan arises out of contract and does not exceed Shs. 1,000/-. However, the decision in Kamachumu Civil Case No. 281 of 1967 was by consent. No application to set it aside was made. The district court was therefore justified in holding that it could not after 12 months revise the matter and therefore was right to uphold the primary court’s decision which dismissed the respondent Zephrin’s objection to the execution proceedings.” (2) “Appeal dismissed.”