19770810 TZHC Musoma

f J67 ,9Z IN THE HIG.13 COJRT OF TANZANIA' (In the Distrct Registry) AT MWANZA (PC) 'CIL APPEJ-W NO0 184 OF 1975 (From the decision of the district court of TARIME t TRlME in Civil Appeal No0 133 of 1973) f ore J0L. MWALUSANYJ Esg0 RESIDENT J'TuGISTRATE (Original Shirati Primary Court Civil Case No 0 194 of 1973) NYAMARONGEIBECHEO 00000000000000000000000000000000000000 OAPELTJINT versus M1GINGA MUHERE.00 0 0 00 000 00 00 00 00 0 0000 0 ORESPONDENT -OoO- JUDGMENT J. Originally the respondent MAGINGJi MUHERE sued the appellant and another person who did not appeal claiming "blood-money" in the form of 25 head of cattle and S1 - s0 1,300/= to cover expenses he incur.red .at the funeral of his dead brother and during the trial of the appellant for the murder of his brother0 The respondent filed this sut in the T_imary Court at Shirati Tarim4-4i'strict0 In that Court, the respondent said that he was claiming this payment from the appellant and his colleague because they had jointly killed his brother one MUHEGI MUHERE and that for that kill- ing the appellant and his colleague were convicted for Manslaughter, and sentenced to six years imprisonment 0 He said that the death of his brother caused a great deal of loss to him and other dependants and that this form of claim is recognised in the customary laws of their tribe namely Wakine0 The Primary Court dismissed this claim almost summarily on the basis that, there was no rule of Customary law ccverng this head of claim0 The record of ., the Primary Court shows that this decision was given by the Magistrate alone0 He did not ask the assessors who set with him regarding the existence of such a custom0 All he did was to make them sign his order. Had he asked the opinions of his assessors they would no doubthave advised him as the district Magistrate was on the existence of such a custom0 The respondent was naturally dissatisfied with this decision, he appealed to the District Court and this successfully0 The Resident Magistrate who heard the appeal sat with assessors and went into a great deal of trouble in unearthing the relevant rules0 The assessors advised him that the Wakine have in their .ustomary law, a rule requiring payment of blood money to the relatives of a person who is killed by a stranger0 They said that in the traditional set uptthe usual payment was 15 head of cattle, and that this payment is known as "ILIHi.0K1" and was made at aceremony called "KISUNSULA"O In these circumstances the Resident Magistrate was right in holding that there was a rule in, the' customary laws of the Wakine tribe providing for the pay- ment of blood money. Having so found the Resident Magistrate proceedd to consider whether such payment was payable in the circumstances of this case. The appellant and his colleague argued as he is arguing now that they should not be made to pay any compensation because they had already been punished to serve a term of six years which they did. This argument was rejected by the Resi- dent Magistrate and this rightly0 Their having serd the sentence meted out by the criminal Court is only relevant in fixingmount of "blood-money" payable0 It did not extinguish the civil rights of Thosc wronged 0 In other words the customary civil aspect of the wrung had not been satisfied by the prison term0 In this case the Resident Magistrate found again rightly that all the conditions for payment of blood money as expor=ded in the.ITUMO Case 1970"HCD by Saidi J, (as he then was) existed in tis" cased. He there- fore allowed•the anpeal and ordered the appellant and his colleague to pay -2- the respondent 14 hed of cattie and Sh0 300/= as compensation for the expenses incurred. In this appeal the appellant repeated the same arguments he advanced in the district Court0 These arguments were rightly rejected for the rule is well estahlj..shecl in their customary law. IPdeed it would be strange if there were no such a rule. As to the argument that he should notbemadetopay anything further because he has served a pri- son term, niy only advice to,him is to ask Traffic öfers who pay compenai ih Ndil itá ii' criminal punishment which might have been given to them, although with the.differeriethat ithe latter case the Insurance company pays for them, but the idea is the same. However I do not think it was riqht to award the respondent the expenses he incurred at the finral and in attending Court during the trial of the case concerning his brothers killing0 First of a.l1 as to the funeral exoenses this should be induced in the global figure of 14 head of cattle which is what "blood-money" is all about. Secondly the other expenses were not contemplated in the customary law, so they cannot be recovered under this head0 If the respondent wants to recover these, he must resort to the iiational law in the appropriate Courts0 For these reasons I would dillbw an award of Shs. 300/= and allow the appeal to this extent 0 Apart from this the appeal is:.othCrwts4- dismissed with costs. ..... ......................... MUSOMit0 L. IVIFALILIt 10TH AUGUST, 1977. JUDGE ..,... .1