Kahabuka v. Kahabuka (PC) Civ. App. 217-M-217; 19/3/71; Mnzavas Ag. J.

Kahabuka v. Kahabuka (PC) Civ. App. 217-M-217; 19/3/71; Mnzavas Ag. J.

The appellant claimed from his half brother a piece of land as part of his inheritance. Their father was married to two wives, the respondent’s mother being the first wife. When the father died, some land of his was distributed to the appellant and respondent as well as to two maternal brothers of the appellant. The appellant being dissatisfied with the distribution brought this suit alleging that the respondent took too great a share of the land. He further argued in the High court that the respondent was a “son of bisisi” (born out of wedlock) and therefore had no right to inherit the property of the deceased.

Held: (1) “There is no doubt that the respondent received a much bigger share of the inheritance. But according to Haya Customary Law this is not unusual is the eldest son in the family i.e. “The musida” Under section 75 – Customary Law of the Haya Tribe – By Hans Cory and Hartonll the eldest son is entitled to receive three parts of the whole of the inheritance shamba plus the big house the deceased used to occupy. Form the evidence it would appear that the respondent did in fact receive less that what Haya Customary Law entitled him to receive. The two brothers of the appellant may not have shared the portion of shamba given to them with the appellant but this has nothing to do with the respondent.” (2) “[Appellant] alleged, the respondent is a “son of bisisi” i. e. he was born out of wedlock. This argument by the appellant is clearly an afterthought. He did not raise it before the court of first instance nor did he raise the argument in the District Court. He in fact acknowledged the respondent as the eldest son of the deceased and the principle heir. He only argued that he was not given his share of the land.” (3) Appeal dismissed.