Kamuhanda v. Kamuhanda and Two others (PC) Civ. App. 59-M-70; 24/3/71; Kisanga Ag. J.

Kamuhanda v. Kamuhanda and Two others (PC) Civ. App. 59-M-70; 24/3/71; Kisanga Ag. J.

The appellant was away in Uganda when his wife in Bukoba got involved in a criminal case in which she was ordered to pay compensation. She was unable to pay in full, where upon the shamba on which she stayed and which belonged to the appellant was, by court order, auctioned and sold by the first respondent as curt broker to the second respondent. Subsequently the second respondent sold the shamba to the third respondent. The appellant then returned home and lodged this claim. The primary court disallowed it relying on par. 575of CORY AND HARTNOLL’S CUSTOMARY LAW OF THE HAYA TRIBE that: “…………. Any shamba sold on public auction authorised by the court cannot be restored to any member of the originally owning family. “ The District Court dismissed the appeal on the ground that appellant had been aware of he intended sale by the court, did not object, and after the sale went through in 1964, he sat on his rights and did not lodge the claim until some five to six years later.

Held: (1) The Primary Magistrate “misconstrued the provisions of Para. 575 of CORY AND HARTNOLL. That paragraph provides that, “if a pledged plantation is auctioned to repay debts, no relative is entitled to take action for redemption against the buyer.” The shamba in question was not pledged but was attached and sold, and therefore it would appear that the provisions of the said paragraph in CORY AND HARTNOLL were inapplicable”. (2) “There was no evidence for the District Magistrate’s finding that the appellant knew of the intended sale. The appellant did not meet his wife and did not receive letters from her.” (3) “There was abundant evidence that the land in question was appellant’s clan land and that the appellant’s wife had no title to it but was only looking after it on the instructions of the appellant. It therefore follows that the purported attachment and sale of the land by court order was ineffective, first because the judgment debtor (the Appellant’s wife) had no title to the land being attached and sold, and secondly because, the legal owner (the appellant) was given no notice of the attachment and the sale of his land to enable him to object it he wanted to.” (4) Title to the land still vests in the appellant. (5) Appeal allowed.