Alphonce v. Pastory (PC) Civ. App. 73-M-71; 4/8/71; El-Kindy J.

 Alphonce v. Pastory (PC) Civ. App. 73-M-71; 4/8/71; El-Kindy J.

            The respondent’s shamba, the subject of dispute, was sold to a non-clan member in order to pay for the outstanding local taxes, which her father had not paid. The shamba was bought by one Rutarage. The appellant’s father, her uncle, redeemed the clan shamba upon payment of Shs. 72/- to Rutarage. At the material time, the respondent was a minor. She subsequently entered into an agreement with the appellant’s father to the effect that she would take possession of the shamba when she returned the Shs. 72/- he paid to redeem the property. On his death, the appellant inherited his father’s property and he claimed that he was entitled to inherit the disputed shamba because his later father bought it from Rutarage. The trial court, and the appellate court, held that there was no evidence that the appellant’s father bought this shamba outright as claimed by the appellant, and that the evidence established that he was in possession of the shamba in his capacity as a redeemer and that ownership therefore remained with the respondent’s father or his successor, subject to repayment of the Shs. 72/- paid to redeem it. The court then gave possession of the shamba to the respondent upon payment of Shs. 72/-. On appeal to the High Court the appellant argued that the decision was misconceived as the shamba became the lawful property of his father on redemption and possession of it since 1938.

                        Held: (1) “I cannot agree to this, as the evidence does not support his contention of outright ownership. His father was in possession of the shamba because he was the one who redeemed it and no more. It was for this reason that his father agreed during his life time ………….. That the respondent should be allowed to take possession of the shamba. This was a clear recognition on his part that the shamba was the property of the respondent’s father although he was in possession of it. This also explained why the boundary between the disputed shamba and the appellant’s father’s shambas remained undisturbed until recently when the shamba had completely passed into his ownership, the boundary would have been removed according to custom.” (2) The appeal is dismissed.