Marwa Mbau v. Ligamba Eringo, (PC) Civ. App. 208-M-68, 30/10/68, Seaton J.

The plaintiff sued the defendant in Zanaki Primary Court for the return of a bicycle allegedly entrusted to the defendant in 1959 for safekeeping. The case was filed on 24 August 1967. At the trial, the plaintiff stated facts concerning the entrusting of the bicycle. The defendant admitted that the bicycle had been entrusted to him, but he stated that the bicycle had been seized by the traffic police for failure to pay licence fees and the plaintiff had refused to go to the police to recover the bicycle. In an additional statement the plaintiff alleged that the defendant had sold the bicycle; it was not recorded whether or not this statement was on affirmation. The defendant was not allowed to call his witnesses, and the court gave judgment for the plaintiff. On appeal to the District Court, the court heard witnesses for the defendant but affirmed the judgment for the plaintiff, taking into account some evidence that the defendant had occasionally used the bicycle. The  defendant then appealed to the High Court.

Held: (1) Under the Schedule, Magistrates’ Courts (Limitation of Proceedings under Customary Law) Rules, G.N. 311/1964, the period of limitation for civil wrongs is three years from the date of the wrong or from the date the rules came into effect (29 May, 1964), whichever is later. Under either test the action is time-barred.

         There is no ground for believing that the relevant customary law imposed absolute liability on trustees or bailes. Therefore, the plaintiff’s only duty was to return the bicycle or give a reasonable explanation for being unable to do so. The use of the bicycle was not expressly prohibited and is not unusual in such circumstances.

         Rule 3 (4), G.N. 311/1964, gives discretion to admit a time barred action. However, the discretion should not be exercised in the circumstances of this case.

         The trial court erred in not recording whether or not the plaintiff’s second statement was on affirmation.

        Assuming that the statement was on affirmation the trial court erred in denying the defendant the opportunity to call his witnesses. [Citing Rule 45, Magistrates’ Court (Civil Procedure in Primary Courts) Rules, 1964.] Defendant’s appeal allowed.