Salvatori Tena v. William Mkodo, (PC) Civ. App. 15-A-68, 2/12/68, Platt J.

S and W agreed that W should build a house for S with materials supplied by him. S was to pay W for his labour. The foundations were laid, and S advanced money. The building was not completed. S sued and W in the Primary Court. at the end of six months and obtained a judgment ordering W to complete the house within six months. The house was not completed nor was any action taken by the Primary Court, apparently because it then had doubts as to its jurisdiction. S brought a second action in the District Court which held the issue res judicata.

Held: (1) A number of authorities have decided that s. 14 of Magistrates Courts act, Cap. 537 should be construed widely to give primary courts jurisdiction in contracts of this kind, and that small debts between Africans were within the section.

         The matter was not res judicata. The plaint in the District Court was filed after the period set by the Primary Court had expired, and the claim related to facts which arose after the Primary Court considered the matter.          The present dispute related to the position of the parties after the date of the Primary Court hearing, not after the period et by the Primary Court had expired, since the ability of W to complete the work within that period depended upon S’s supplying materials. Both parties claim that the contract was not carried out in that period due to the failure of the other party. There should be a trial on this question of who finally broke the contract.

           Section 57, Magistrate Courts Act, implies that wherever possible proceedings should be begun in the Primary Court. Accordingly the decision of the District Court is set aside and the suit is transferred to the Primary Court under s. 12, Magistrates Courts Act, for it to decide which party was ultimately in breach.