Kilale s/o Mwakajinga v. Enos s/o Mwaikambo, (Pc) Civ. App. 130-D-67; 18/8/67, Saidi J.

Kilale s/o Mwakajinga v. Enos s/o Mwaikambo, (Pc) Civ. App. 130-D-67; 18/8/67, Saidi J.

Plaintiff loaned defendant Shs. 210/- in 1958. Shortly thereafter, defendant’s house burned down through no fault of the defendant; in the fire, the loaned money was destroyed, along with other property of the defendant. In 1966, plaintiff sued in Primary Court to recover the loan; no showing was made as to the reason for the delay in bringing the action. The decision in District Court was for the plaintiff, the defendant appealed out of time.

            Held: (1) The appeal, though out of time, was heard “in the interests of justice.” (2) “(I)t would be inequitable to compel the (defendant) to refund the money to the (plaintiff), because it was destroyed by an unfortunate event which was not anticipated by either party and was outside the control of the (defendant).” (3) “There is another point which stands in favor of the (defendant). It is definitely clear that the claim was time-barred and that both courts below  in advertently overlooked this fact.” (4) Because neither party was responsible for the loss of money, it is “equitable for each party to pay his own costs.”

            The Court did not specifically deal with the matter of whether the suit, which had been brought initially in Primary Court, turned upon an interpretation of customary law.