Court name
High Court of Tanzania

Simango Kehegu vs Athanas Tarayani () [1989] TZHC 36 (29 September 1989);

Law report citations
1989 TLR 170 (TZHC)
Media neutral citation
[1989] TZHC 36
Mwalusanya, J.

Mwalusanya, J.: The appellant Simango s/o Kehengu was successfully sued at Noreme Primary Court in Serengeti District by the respondent Athanas s/o Tarayani in a H claim of ten head of cattle which had been unlawfully seized by the traditional army (Sungusungu or Baraza la Jadi) from the respondent and given to the appellant. The appellant appealed to Serengeti District Court and his appeal was partly successful in that he was ordered to refund only seven head of cattle instead of ten. Still aggrieved by I that decision, the appellant has now appealed to this court. At the hearing of this appeal, the appellant was represented by counsel Mr. Sandhu.

What happened was that sometime in 1972 the appellant had his seven head of cattle A stolen. He suspected the respondent to be the thief. With the advent of Sungusungu in l988 the appellant sent the respondent to the Sungusungu to be tried. It is said the respondent was tried and convicted by the Sungusungu and was ordered to compensate the complainant (the appellant) the seven head of cattle. However when the members of B the traditional army were executing the attachment, they attached ten head of cattle from the respondent. It is said only seven head of cattle were handed over to the appellant while three head of cattle were 'pocketed' by the Sungusungu.
The trial court ordered the appellant to refund all the ten head of cattle to the C respondent. However the District Court held that appellant should refund only seven head of cattle which he had been given; and that respondent should have sued the Sungusungu for the three head of cattle which they had 'pocketed'. D
There can be no controversy that the Sungusungu are operating outside the Rule of Law. They have no power to try and convict offenders nor make compensation orders. Under our Constitution only the courts of law are empowered to try, convict and sentence offenders. Under Article 13(3) of the Constitution it is stated that: 'Rights of an individual and the community shall be protected by courts of law and other organs of the E government'. But the traditional army is neither a court of law nor an organ of the government with judicial powers. And Article 24 of the Constitution states that every individual has the right to the protection of his property; and that his property may only be taken from him when found liable by a court of law or when there is a legislation F allowing confiscation of somebody's property but which makes adequate compensation for the affected individual. Therefore it is crystal clear that the traditional army usurped the judicial power which it does not possess under our constitution. The judicial power is vested in the court of law only. So the conduct of the traditional army in this case was G patently unlawful. And the appellant having used an unlawful method for getting redress, must bear responsibility and refund the seven heads of cattle that he was unlawfully compensated. I agree with the learned Senior District Magistrate that the appellant is H only liable for seven heads of cattle which he was given. The respondent should have sued Sungusungu that had unlawfully pocketed the three head of cattle.
In the event this appeal fails and it is dismissed with costs. the appellant should refund the respondent only seven head of cattle.
I Order accordingly.