Ndinoni v Nebele (Civil Appeal No. 52 of 1949) [1952] EACA 1 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill (President), Sir Graham Paul (Vice-President) (Tanganyika) and EDWARDS, C. J. (Uganda)

LOLKILITE OLE NDINONI, Appellant (Original Appellant)

## $\mathbf{v}$

**NETWALA OLE NEBELE, Respondent (Original Respondent)**

## Civil Appeal No. 52 of 1949

(Appeal from the decision of H. M. Supreme Court of Kenya, de Lestang, J.) Limitation—Native Tribunal—Blood money claim—35 years old.

The appellant was the son of a deceased, who was alleged to have committed homicide. Some 35 years previously a claim was made in the Native Tribunal for compensation for the killing. The Native Tribunal rejected the claim but the Supreme Court supported it.

Held (8-8-50).—(1) It is repugnant to natural justice to entertain a claim of this nature after so long.

(2) The Limitation Ordinance does not apply to suits or proceedings originating in a Native Tribunal.

Appeal allowed.

Case referred to: Waiharo v. Kamuete, E. A. L. R. Vol. XI. 67.

A. R. Kapila for appellant.

Respondent absent, unrepresented, served.

JUDGMENT (delivered by EDWARDS, C. J. (Uganda)).-I would allow this appeal on one ground alone, namely, that it is repugnant to natural justice to allow a tribunal to entertain a claim of this nature at the distance of about forty years from the time when the cause of action arose. It should be obvious that a defendant is placed at a great disadvantage, for example, in obtaining evidence in rebuttal. In my view, the learned Judge of the Supreme Court of Kenya was not justified in differing from the view expressed by Sir Jacob<br>Barth, Chief Justice, in the case of *Waiharo v. Kamuete* (Vol. XI, E. A. L. R. page 67). In that case Sir Jacob Barth expressed the view that a period of 27 years was too long. With that view I am in agreement and, so far as I am aware, its soundness has never been questioned and it was expressed as far back as 1927.

As to whether the Limitation Ordinance, 1934, applies to proceedings in Native Tribunals I am of the opinion that it does not. I consider that the words "suits or proceedings" must be limited to suits and proceedings in Courts. A Native Tribunal is not a "Court" properly so-called. It would be patently<br>absurd to expect Native Tribunals to be provided with copies of translations of the Limitation Ordinance, 1934. It is settled law that long practice, unless clearly contrary to law, should not be disturbed. A cardinal rule of interpretation is that one must, whenever one can, place such interpretation on a statute as will not lead to an absurdity. Now, if one interprets "suits" or "proceedings" as I suggest these words should be interpreted one avoids an absurdity. Although, speaking for myself, I do not deem it necessary for the decision of this appeal to deal with the question whether the claim in suit was in the nature of "blood" money" and, as such, repugnant to our ideas of natural justice, yet, for what it is worth, I think that I ought to give my own views, although they will be only *obiter*. To begin with, we do not know the Masai word used by the Native Tribunal or whether it corresponds as nearly as may be to the English word and to the British conception of blood money. Let me, however, say at once that if this were a case where the alleged killer were to escape the clutches of criminal law as administered by the Kenya Colony British Courts on condition that he paid compensation, whether in cash or cattle, to the relatives of his deceased victim I would agree that this is "blood money" properly so-called and, as such, contrary to natural justice as we understand that term since it would allow a person guilty of homicide to escape punishment at the hands of the State. But here the facts are rather different. Years after the death of the slayer, a relative of the slaver's victim comes along and asks that the slaver's heir (I) gather that the Native Tribunal regarded the appellant as such) be made to pay him compensation for the death of his relative. It seems to me that it would be repugnant to all ideas of natural justice to make an heir pay compensation in such circumstances unless it were clearly established (a) that the aggressor had feloniously and without lawful excuse killed his victim, and (b) that the heir had succeeded to his ancestor's estate to an amount equally as great as the amount of compensation claimed. Neither of those matters seems to have been proved in this case. I prefer to express no view on the point whether the Native Tribunal Rules, 1913, are still in force.

I would allow this appeal and substitute an answer to the stated case as follows: "The claim should not have been entertained; the judgment given against the present appellant should be set aside and the claim of the present respondent dismissed." The appellant should have his costs of this appeal.

SIR BARCLAY NIHILL (President).—I agree with the learned Chief Justice of Uganda that whilst the Limitation Ordinance, 1934, cannot be construed as applying to a suit or proceeding originating in a Native Tribunal, a period of 35 to 40 years between the cause of action and the institution of the suit, was in a claim of this nature, a period so long as to be repugnant to natural justice. In this case a son is called upon at least 35 years after the event to atone for the alleged sins of his father. He is naturally not in a position either to challenge the evidence as to the homicide, a homicide which was never reported to Authority, or to produce evidence as to the circumstances of the killing. The learned Judge in the Court below, I gather, was influenced in his opinion by the thought that the mere passage of time should not operate to bar redress of an ancient wrong. I would agree with him generally that justice long delayed may still be done out with respect I cannot consider it justice either to the dead or to the living that a son should be saddled with payment of compensation for a crime which during the lifetime of the father, it was never proved he had committed.

As we are content to allow this appeal on this issue alone that is all that need be said, but for guidance of Native Tribunals who may be called upon to try this class of case in the future there are some further observations which I think can usefully be said. It has been urged for the appellant that apart from any other consideration the Native Tribunal acted in excess of jurisdiction in hearing this claim at all because under rule 6 of the Native Tribunal Rules, 1913. a Native Tribunal, or Council of Elders as it is called in these Rules, is expressly forbidden to exercise any jurisdiction in any matter or claim arising out of the offences of murder or culpable homicide not amounting to murder. This argument is based on the premise that these Rules are still in force. The Rules were made under the authority of the Courts Ordinance (Cap. 5 of the Laws of Kenya, 1926 Edition) and were never repealed prior to the repeal of the Courts Ordinance itself by the Courts Ordinance, 1931 (Ordinance 16 of 1931). Prior to the repeal of the Courts Ordinance, however, the Native Tribunals Ordinance, 1930, was enacted and by section 42 (1) of this Ordinance, subject to certain declarations

by the Governor, the jurisdiction conferred on existing Native Tribunals by the then existing Courts Ordinance was maintained, in all respects until determined or varied in accordance with the Native Tribunals Ordinance. I have said enough I think to show that the determination of the question whether a particular Native Tribunal was still bound by the prohibition contained in rule 6 of the Rules of 1913 might be no easy matter. As my learned brother has observed it is not necessary on this appeal for us to decide this question and we do not do so. I commend a study of the position, however, to those responsible for the administration of these Tribunals, for unless it is faced difficulties are bound to be experienced in the future.

On the question of blood money generally I am also in agreement with the observations of the learned Chief Justice and would add this that I would not regard an award of compensation to the estate of the dead man from the person or relatives of the person responsible for his death as necessarily repugnant to natural justice, if awarded in accordance with native law and custom, and not (a) for the purpose of compounding a felony, or $(b)$ in cases where the homicide was established as excusable.

I have only one further observation to make. It would appear that in the progress of this Suit from the Native Tribunal of first instance to the hearing before the Provincial Commissioner or Officer-in-Charge, Masai, as he is designated, a joint meeting of two Native Tribunals was held to consider the matter. This seems to have occurred after the first Native Appeal Tribunal had reversed the decision of the Loitokitok Native Tribunal and before the matter reached the District Commissioner. It is evident that the Provincial Commissioner was impressed by the view taken by this meeting which he describes in the case stated as the highest authority on Masai Law and Custom. No doubt it is but unless it had a legal basis on which to exercise jurisdiction its intervention could have no effect. I have been unable to discover what legal basis it could have had but since the Crown has not been represented at the hearing of this appeal I refrain from expressing a definite opinion as to the legality of its proceedings.

The appeal is allowed and the decision of the Loitokitok Native Tribunal dismissing the respondent's claim is affirmed.

The appellant will have the costs of this appeal as well as costs of the proceedings in the Supreme Court and the order in respect of costs made by the District Commissioner is set aside and costs if paid thereunder will be refunded.

SIR GRAHAM PAUL (Vice-President).-In my opinion it is clear that this appeal must be allowed and the judgment of the original first Native Court restored—the decisions of all the other Courts below being set aside. I have no doubt that the judgment of Barth, C. J. in the case of Waiharo v. Kamuete, XI E. A. L. R. 67, was right and governs this case. I am quite unable to agree with the learned Judge in the Court below in his views of that decision which in effect he apparently intended to overrule by his judgment.

There are many interesting questions as to "blood money", application of the Limitations Ordinance to Native Courts, etc. which, but for this case being decided simply and solely on the decision in Waiharo v. Kamuete, would no doubt have arisen for decision in this appeal. As it happens none of these questions does arise for decision. This is a Court of Justice and not an Academy of Law so I resist quite easily the temptation to obiter browsing over these other questions. I agree with the order as to costs in the judgment of the learned President.