Ezekiel s/o Luka v. Kijana s/o Mlinda (PC) Civ. App. 115-M-68, 26/7/68, Seaton J.

Ezekiel s/o Luka v. Kijana s/o Mlinda (PC) Civ. App. 115-M-68, 26/7/68, Seaton J.

Respondent sued that village headman for damages for refusing to allow him to sell pombe. He claimed that he had suffered a loss of Shs. 600/-, including the profit he might have made on the sale.

            Held: (1) Under s. 14 of Magistrate’s Courts Act, Cap. 537, respondent had to establish not only that he had suffered loss through the appellant’s act, but also that it was the kind of loss for which customary law provides a remedy. There is no evidence of such a remedy under customary law. See s. 32(3) of Magistrates Courts Act and s. 9 of Judicature and Application Ordinance 1961. (2) There does not seem to be any recorded opinion or statement regarding the headman’s liability under customary law. There was ample evidence that prior to selling the pombe, respondent had twice been refused the right to sell at the place in question. Therefore the headman’s acts when he saw respondent selling the pombe must be considered to have been within the scope of his duties to see that laws and orders regarding pombe are carried out.