Wakilii

Asha v Mahomed Issa (Civil Appeal No. 15 of 1940)

East African Court of Appeal · [1941] EACA 2 · 1941 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya reversing Resident Magistrate's judgment
Decision
Resident Magistrate's judgment in favour of appellant restored

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that no native tribunal has jurisdiction over Somalis unless specially constituted under the second proviso to section 8 of the Native Tribunals Ordinance 1930. The warrant establishing the Mumias Township Native Tribunal purported to give jurisdiction over Mohamedans of African blood, but this was ultra vires the Ordinance insofar as it concerned Somalis. The native tribunal that purported to decide the dispute was not competent to do so, and the question of res judicata did not arise. The appeal was allowed and the Resident Magistrate's decision restored.

Outcome

Resident Magistrate's judgment in favour of appellant restored

Facts

The appellant sued the respondent in the Resident Magistrate's Court at Kisumu for Sh. 600 as balance of dowry. The respondent defended on the ground that the claim had been satisfied by payment of Sh. 200. During cross-examination, the respondent was confronted with a decree of the Swahili Native Tribunal, Mumias-Kakamega, for the same sum. The Resident Magistrate decided in favour of the appellant. On appeal to the Supreme Court, this decision was reversed on the ground that the matter was res judicata by reason of the Native Tribunal's decision. Both parties were Somalis. The warrant establishing the Mumias Township Native Tribunal purported to give it jurisdiction over Mohamedans of African blood in North Kavirondo district.

Issues

  1. Whether a native tribunal has jurisdiction over Somalis absent appointment under the second proviso of section 8 of the Native Tribunals Ordinance 1930.
  2. Whether the matter was res judicata by reason of a prior decision of the Swahili Native Tribunal.

Orders

  • Appeal allowed.
  • Decision of the Resident Magistrate restored.
  • Costs to the appellant in this court and in the courts below.

Rules and key headnotes

Administrative Law — Native Tribunals — Jurisdiction over Somalis
No native tribunal has jurisdiction over Somalis unless specially constituted under the second proviso to section 8 of the Native Tribunals Ordinance 1930.
Statutory Interpretation — Ultra Vires — Tribunal Warrants
A warrant establishing a native tribunal that purports to give jurisdiction over Mohamedans of African blood is ultra vires the Native Tribunals Ordinance 1930 insofar as it concerns Somalis, absent special constitution under the second proviso to section 8.
Civil Procedure — Res Judicata — Competence of Tribunal
Where a tribunal lacks jurisdiction to decide a matter, its purported decision does not give rise to res judicata.

Legislation cited (1)

  • Native Tribunals Ordinance 1930 s.8

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Asha v Mahomed Issa (Civil Appeal No. 15 of 1940) [1941] EACA 2 (1 January 1941)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.