Asha v Mahomed Issa (Civil Appeal No. 15 of 1940) [1941] EACA 2 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

ASHA BINTI JAMA, Appellant (Original Plaintiff-Respondent)

## MOHAMED ISSA, Respondent (Original Defendant-Appellant) Civil Appeal No. 15 of 1940

Appeal from decision of H. M. Supreme Court of Kenya.

Jurisdiction of Native Tribunals over Somalis—Native Tribunals Ordinance, 1930, section $8$ .

Held (7-2-41).—That no native tribunal save one appointed under the second proviso of section 8 of the Native Tribunals Ordinance can exercise jurisdiction over Somalis. Section 8 of the Native Tribunals Ordinance, 1930, reads as follows:-

"Every native tribunal shall have full jurisdiction, to the extent set forth in its warrant and subject to the provisions of this Ordinance, over causes and matters in which all the parties are natives resident or being within the area of the jurisdiction of the tribunal:

Provided that in civil cases in which one or more of the parties is an Arab or in criminal cases in which the accused person is an Arab a native tribunal shall have jurisdiction only with the consent of such party or parties:

Provided further that in any area the Governor may prescribe that any tribunal shall be constituted in whole or in part of Somalis, and may further prescribe that any tribunal so constituted shall have jurisdiction over Somalis as well as over natives."

The facts appear from the judgment reported.

Russell for the Appellant.

Gautama for the Respondent.

SIR HENRY WEBB, C. J.—In my opinion this is a very plain case. The appellant sued the respondent in the Court of the Resident Magistrate, Kisumu, for Sh. 600. balance of dowry. The defence was that her claim had been satisfied by a payment of Sh. 200, and the case went to trial upon this sole issue. The respondent having given evidence in support of his plea, the appellant's advocate, in cross-<br>examination, in order to show that there had been no such settlement of the appellant's claim, confronted him with a decree of what is described as the "Swahili Native Tribunal, Mumias-Kakamega" for the very sum claimed. No application to amend the defence was made, but there was considerable argument as to whether this did not show that the appellant's claim had been already adjudicated by a court of competent jurisdiction. The Resident Magistrate decided in favour of the appellant, but on appeal to the Supreme Court this decision was reversed on the ground that the matter was *res judicata* by reason of the decision of the Native Tribunal.

Before this Court it has been contended that the appellant should not have been allowed to raise the question of res judicata before the Supreme Court seeing that he had not pleaded it, either originally or by amendment, nor asked to have that issue tried, but in my view this is immaterial because it is clear that the Native Tribunal of Mumias, assuming that it was in that court that the case was tried, was not competent to deal with it. It is admitted that the parties are Somalis, and, in my opinion, there can be no doubt that no Native Tribunal has jurisdiction over Somalis, save one specially constituted under proviso 2 to section 8 of the Native Tribunals Ordinance, 1930, which it is not suggested was the case here. It is true that the warrant establishing Mumias Township Native Tribunal pur-

ports to give it jurisdiction in cases of marriage and divorce "over Mohamedans of African blood in the district of North Kavirondo", but so far as concerns-Somalis, this is *ultra vires* the Ordinance.

I am therefore of opinion that the Native Tribunal which purported to decide the dispute between the parties was not a tribunal competent to decide it, and consequently the question of res judicata did not arise, and that the appeal should be allowed, and the decision of the Resident Magistrate restored with costs to the appellant here and in the courts below.

I would add that it seems to me that warrants establishing Native Tribunals. might well be more carefully drawn than those that have been produced in thiscase, and that, while Native Tribunals cannot be expected to attain any very high standard of accuracy in their records, it should at least be possible to know which court has decided a case: here, for example, the summons served on the respondent is entitled "Native Tribunal, Kakamega Township" the decree appears to be one of the "Swahili Native Tribunal ..... Mumias-Kakamega", while counsel for the respondent has contended that the case was in fact heard by the Mumias Township Native Tribunal sitting at Kakamega.

SIR JOSEPH SHERIDAN, C. J.—I have had the advantage of reading the judgment of my brother Webb with which I agree.

SIR NORMAN WHITLEY, C. J.—I concur.