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Kingate v Nginyi (C.A. 9/1927.) [1927] EACA 43 (1 January 1927)
- Citation
- [1927] EACA 43
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Barth CJ
- Case number
- C.A. 9/1927.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Barth CJ
- Case number
- C.A. 9/1927.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that, in appeals from native tribunals, the procedure applicable to ordinary suits, including the law of limitation, must be followed. The absence of a specific limitation law for native tribunals does not exempt such cases from limitation principles when appealed to the regular courts. The court further found that Article 7 of the Kenya Order-in-Council, 1921, grants discretion to apply limitation law to achieve substantial justice. Given that the cause of action arose at least twenty-seven years prior and that the respondent's father took no steps to enforce his rights during that period, allowing the suit to proceed would result in injustice. Therefore, the appeal was allowed, and the previous awards were set aside.
Court disposition
appeal allowed
Orders
- The appeal is allowed with costs in both courts.
02
Material facts
Parties
Waiharo wa Kingate
AppellantKamuete wa Nginyi
Respondent03
Procedural history
Posture
Civil Appeal / Appeal From Subordinate Court Decision Affirming Native Tribunal Award
04
Questions and positions
Legal issues
- 01
Whether the law of limitation applies to appeals from native tribunals.
- 02
Whether the court has discretion to apply limitation law to achieve substantial justice in cases involving native litigants.
- 03
Whether a suit based on events occurring over twenty-seven years ago should be entertained.
Party arguments
- Applicant
- The appellant argued that the law of limitation should apply to appeals from native tribunals, and that entertaining a suit based on events from nearly three decades ago would be unjust. The appellant contended that the relevant procedure for suits, including limitation, should bind the court regardless of the parties' native status.
- Respondent
- The respondent maintained that there is no specific law of limitation applicable to native tribunal cases, as previously held by the Assistant District Commissioner. The respondent sought to enforce rights arising from the marriage transaction involving his father and the appellant's sister, despite the passage of time.
05
Court’s reasoning
Legal principles
- 01
Native Tribunal Rules, 1913, section 14; Athman b. Mohamed v. Abdulhusein Karimji, 7 E.A.L.R. 5
Appeals from native tribunals must be dealt with as if they were original cases, and the procedure applicable to suits, including limitation law, applies.
- 02
Kenya Order-in-Council, 1921, Article 7
The court has discretion under Article 7 of the Kenya Order-in-Council, 1921, to apply the law of limitation to effect substantial justice.
06
Ratio, limits and disposition
Ratio decidendi
The court held that, in appeals from native tribunals, the procedure applicable to ordinary suits, including the law of limitation, must be followed. The absence of a specific limitation law for native tribunals does not exempt such cases from limitation principles when appealed to the regular courts. The court further found that Article 7 of the Kenya Order-in-Council, 1921, grants discretion to apply limitation law to achieve substantial justice. Given that the cause of action arose at least twenty-seven years prior and that the respondent's father took no steps to enforce his rights during that period, allowing the suit to proceed would result in injustice. Therefore, the appeal was allowed, and the previous awards were set aside.
Obiter and limits
- It is highly desirable that there be some check on hearing suits based on events which happened, in some cases, before the advent of Government.
Court disposition
appeal allowed
- The appeal is allowed with costs in both courts.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
Before SIR J. W. BARTH, C. J.
WAIHARO wa KINGATE (Appellant) (Original Defendant) 1).
KAMUETE wa NGINYI (Respondent) (Original Plaintiff). C. A. $9/1927$ .
Indian Limitation Act, 1877—application to suits brought by natives.
Held: -That as an appeal from a Kiama or Native Tribunal must be dealt with as if it were an original case the Court is bound by the procedure applicable to suits. Such procedure includes the Article 7, is sufficient authority to exercise discretion in the<br>application of the law of Limitation to effect substantial justice.
JUDGMENT.—This is an appeal from the decision of the 3rd Class Subordinate Court at Kyambu given in an appeal from the decision of a native tribunal in a suit for the balance of goats. due in respect of a marriage of the respondent's father to the appellant's sister.
It would appear that the facts occurred about 1899 or 1900. when both the parties were at most small children.
The respondent's allegation is that his father paid sixty-five goats and five rams for the appellant's sister. She returned to her father and twenty goats were returned to the respondent's father. She subsequently returned to the respondent's father.
The great famine separated them once more and it is alleged that the woman went off with an Mkamba who paid, the appellant alleged before me, 100 goats for her. In evidence the respondent said 120 goats was the price given.
The respondent brought a suit before the Native Tribunal for the return of the balance of the marriage price paid by his father. The suit was brought in the Native Tribunal last year.
The Native Tribunal awarded him thirty goats and that has been upheld on appeal by the Assistant District Commissioner. The Assistant District Commissioner held that there was no law of limitation in native cases. It is a fact that no specific law of limitation has been applied to Native Tribunals, and in my view it is highly desirable that there be some check on hearing suits based on events which happened, in some cases, before the advent of Government.
I have held in Civil Appeal No. 42 of 1925 that as an appeal from a Kiama or Native Tribunal must be dealt with as if it were an original case, vide Native Tribunal Rules, 1913, section 14, the Court is bound by the procedure applicable to suits. Such procedure includes the relevant law of limitation and it is. immaterial whether or not either or both litigants are natives (Athman b. Mohamed v. Abdulhusein Karimji, 7 E. A. L. R. 5).
The Kenya Order-in-Council, 1921, Article 7, is sufficient authority to exercise discretion in the application of the law of limitation to effect substantial justice, but in my view to allow a suit in a cause of action arising at least some twenty-seven years ago would be to inflict injustice. The respondent's father apparently took no steps to enforce the rights on which his son is now relying.
The appeal is allowed with costs in both Courts.
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