19750228 TZHC Arusha

6'C4 It 4 IN THE HIGH COURT OF TANANIA AT PIWANZA (PC) CIVIL APPEAL NO0 26 OF 1971 (From the decision of the District Court of Shinyanga - District at Shinyanga in Civil Appeal No0 6l of 1970) KABELELE NTUNGI 000O00O0O00oOOe0000o0o0000O0 APPELLANT versus KIL,ALA KABELELE 0 RESPONDENT JUD GHEN T MAKAI"IE, J. The appe.lant was defeated by his son, the respondent, in a suit the latter brought against him at Chi1e Primary Court for thirty four head of cattle and nineteen goats The respondent was awarded all the cattle he claimed but of the goats he got only eight0 The appellant's efforts before the District Court, Shiriyanga, were unrewarded, hence this second appeal0 There was clearly bad blood between the parties, Father and Son, and apparently as a result of that each one of them had occasion to do a stint in jail0 There is consentaneity that some time while the respondent was in prison, the appellant went to the house of the respondent and removed from it fifty head of cattle and a hundred goats0 This alone would seem to suggest that the respondent was living on his own and to dispose of Mr0 Matemba's long argument about the respondent being dependent on his father0 The respondent's case was that of the animals the appellant drove off while he was away, the ones he was claiming were his own, obtained through his own sweat0 MASHINE KAWELELE, another of the appellant's sons and therefore the respondent's brother, gave evidence thatthe respondent used to purchase his own animals and there was also the testimony of several other witnesses to the effect that, over the years, the respondent went round acquiring cattle and goats0 The trial Primary Court Magistrate and both his assessors, who saw and heard the parties and the various witnesses, found in favour of the respondent to the extent indicated0 I frankly do not feel I would be justified to differ with the decision, adopted also by the first appellate court0 Neither the assertions contained in the Memorandum before me, nor Mr0 Matemba's erudite arguments in conducting this appeal, would constrain me to feel differently0 Accordingly I dismiss this appeal with costs at shs03()/-, inclugive of Shs0 12/= fare0 /cwm (L0 K. MAKAME) JUDGE Arusha: 28/2/75