Kingate v Nginyi (C.A. 9/1927.) [1927] EACA 43 (1 January 1927)

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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