Kabusu Mtongori v. Wambura Nyamaisa, (PC) CIv. App. 149-D-66, 7/12/67, Seaton J.

Kabusu Mtongori v. Wambura Nyamaisa, (PC) CIv. App. 149-D-66, 7/12/67, Seaton J.

Sometime between 1952 and 1954, plaintiff transferred an ox to defendant in exchange for a cow which subsequently gave birth to a heifer. The cow had been stolen in 1952, and in 1954 it was restored to its owner by court order in a criminal case in which plaintiff and defendant were both acquitted of the theft. Plaintiff filed this action in Primary Court in 1963 claiming two cows in compensation for the cow and heifer which he had returned to the owner. Nothing in the record of proceedings or the Primary Court judgment indicated whether or not he applicable law was customary law, though it was clear that Islamic Law was inapplicable.

            Held: (1) Section 14 of the Magistrates’ Courts Act grants jurisdiction to Primary Courts to hear civil suits under customary or Islamic law as well as under “any other law” by which jurisdiction is conferred. (2) If some law other than customary law is applicable, the suit is barred by the Indian Limitation Act, 1908. under either sections 48 and 49, which prescribe a three year period of limitation for suits for specific movable property or for compensation for the wrongful taking or detaining of such property, compensation for the wrongful taking or detaining of such property, or under sections 113,114, and 115, which prescribe the same period of limitation for specific performance of a contract, Rescissions of a contract or compensation for branch of an unwritten contract. (3) If customary law is applicable, the suit is barred by the Customary law (Limitation of Proceedings ) Rules, 1963 (G. N. No. 3111 of 1964) which prescribe a three year period of limitation for proceedings for damages for civil wrong and for breach or enforcement of oral contracts. It is thus unnecessary to decide whether customary or “any other law” is applicable.