Salehe Arepi v. Mohamedi Khan, (PC) Civ. App. 95-D-69, 14/8/69, Hamlyn J.

Salehe Arepi v. Mohamedi Khan, (PC) Civ. App. 95-D-69, 14/8/69, Hamlyn J.

The appellant, a Pakistan, was said to owe the respondent a half caste Arab, a sum of Shs. 1,000/-, in respect of a loan by the latter. Both the Primary and the District Courts held for the respondent. The appellant appealed to the High Court on the grounds that the primary court had no jurisdiction to try the case on the grounds (inter alia) that the respondent was an Asian and that no customary law was involved in the case.

Held: (1) “The Magistrates’ Courts Act makes no distinction between persons of various race, and such consideration has nothing to do with its jurisdiction. Persons of any nationality can seek its assistance, provided that the court is competent to hear their cases.” (2) “In so far as the second contention is concerned – that no customary law is involved in the matter – that is perfectly true. Learned counsel referred the Court to the case of Desai – v – Warsama (1967) E.A.L.R. 351, which is a decision of my own, wherein the Court said: “Customary law cannot be the basis of any decision or found any proceedings between the parties who meet on no common ground of legal procedure and jurisprudence …….” Since the date of that decision, the Magistrate’s Courts Act has been amended by the Written Laws (Miscellaneous Amendments) Act, 1968, the first schedule of which now provides jurisdiction to Primary Courts for proceedings of a civil nature:- “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.” In the instant case, the claim is of exactly one thousand shillings, it being in the nature of a loan and consequently a contractual debt, and in view of the amendment to the Act which confers powers upon Primary Courts, such court has jurisdiction in the matter.” (3) Appeal dismissed.