Court name
High Court of Tanzania

Kabuya S/o Essore vs Mturi Nyegeri () [1989] TZHC 37 (29 September 1989);

Law report citations
1989 TLR 172 (TZHC)
Media neutral citation
[1989] TZHC 37
Coram
Mwalusanya, J.

Mwalusanya, J.: The respondent Mturi s/o Nyegeri successfully sued the appellant A Kabuya s/o Essore at Mugango Primary Court in Musoma District, in a claim of nine heads of cattle which were allegedly unlawfully withheld by the said appellant. The appellant appealed to Musoma District Court against the judgment of the trial court, but he again lost and hence this second appeal. B
The respondent testified that his father died in 1951 when his mother was pregnant. Soon after his father's death in 1951 he was born. His father left more than 80 head of cattle. The appellant is the uncle of the deceased father of the respondent and when the C respondent's father died, the appellant was asked to inherit the wife of the deceased, that is respondent's mother. Then the deceased's property was distributed to the children of the deceased by the clan council. Each wife was given a number of cattle to keep them on behalf of her children. The respondent's mother was given nine head of cattle D and as she was inherited by the appellant, the said cattle were kept by the appellant. After some matrimonial conflicts, the respondent's mother deserted the appellant. The appellant did not dispute at the trial that he received the nine heads of cattle, but he said he was given the cattle in his own right as a person who had inherited the deceased's E wife. He said that as the said wife has deserted him, then nor her nor her child (the respondent) has the right to the cattle in question.
The Primary Court Magistrate who was in the minority held that the suit was time-barred. He said that as the respondent was born in 1951, then he attained the age F of majority (21 years) in 1970 and so he should have filed this suit soon after 1970. He said that as the suit was filed in 1987 (17 years after the cause of action arise) then the suit was time-barred. However the gentleman assessors did not care about the law on the limitation period and held that the respondent was entitled to get the nine heads of G cattle. As the gentleman assessors were in the majority, they out-voted the Primary Court Magistrate and their view carried the day as the judgment of the Court.
Surprisingly the Principal District Magistrate did not discuss at all, as to whether the suit H was time-barred or not. That was wrong. This was a fit case to allude to that pertinent question. Under the Customary Law (Limitation of Proceedings) rule GN.No.311/1964, no specific period of limitation is laid down in a case of a claim of heads of cattle. But I rule 5 of the said Rules states:

Where any proceeding is brought for the enforcement of a claim under customary law for A which no period of limitation is prescribed by these Rules, the court may reject the claim if it is of the opinion that there has been unwarrantable delay in bringing the proceedings and that B the just determination of the claim may have been prejudiced by that delay.
The question as to whether the delay is unwarrantable is a question of fact. In the case of Isoto v Isota: (1970) H.C.Dn.328 Mr. Justice Biron found that a delay of six years in C these type of claims was unwarrantable and rejected the claim. In the case at hand the delay was for some 17 years. No explanation has been given by the respondent for this delay. In my considered view the delay is quite inordinate, and therefore the trial court should have rejected the claim. The learned Primary Court Magistrate was right. D
Even on merits, I am of the considered view that the suit should have been dismissed. I agree with the appellant that he inherited the nine head of cattle on his right. When the appellant was installed by the clan council as the inheritor of the wife of the deceased, then the said wife and her child (respondent) became the legal wife and son of the E appellant respectively. In other words the respondent became the legal son of the appellant and so he had no separate property apart from that of his now legal father. He can claim the property of his new legal father (the appellant) when that father dies and he F can claim as a lawful heir to the deceased's estate of his
new legal father. But once the appellant still lives, he cannot claim anything from him. I think that logic makes sense.
In the event this appeal succeeds and it is allowed with costs.
Appeal allowed.

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