Mtatiro Mwita v. Mwita Marianya, (PC) Civ. App. 12-M-67, 16/1/68, Georges C. J

Mtatiro Mwita v. Mwita Marianya, (PC) Civ. App. 12-M-67, 16/1/68, Georges C. J

Plaintiff received one bullock from defendant in exchange for some finger millet. The bullock died two months later of unknown causes. Both parties belong to the Kuria tribe, and this type of contract is well known in tribal custom. The custom is that if an animal so exchange for millet dies within one year, the meat and skin may be returned to the other party who is then obliged to replace the animal. Plaintiff followed this procedure and then brought this suit for another bullock. The primary court failed to follow the customary rule and decided for the defendant citing Tarime. District Court Civil Appeal No. 4 of 1966, in which district court refused to follow the custom.

            Held: (1) “If persons of the same tribe enter into an agreement well known to tribal custom under which the terms are prescribed, these persons must, in the absence of evidence to the contrary, be understood to be contracting in accordance with these terms.” (2) Relevant customary law must be applied if it is”……applicable and is not repugnant to justice or morality or inconsistent with any written law.” The rule in question here is a simple one; it does not take account of the fact that death may be due to the fault of the person receiving the animal But this is not to say that it is repugnant to justice or morality, and it certainly is not inconsistent with any written law. No evidence was presented to indicate that plaintiff was in any way at fault in the death of the bullock. Decision for plaintiff.

            The Court stated, obiter; If it were proved that the animal had died due to the neglect of he person receiving it, “….. the Court, while upholding the rule, could find that the facts did not fall within its purview, as good faith and the customary standards of animal husbandry must be implied as the basis of the agreement.”