Kyauka v. Malasi (PC) Civ. App. 65-A-69; 7/11/70; Kwikima Ag. J.

 

 Kyauka  v. Malasi  (PC)  Civ. App. 65-A-69; 7/11/70; Kwikima Ag. J.

The appellant leased a parcel of land from the respondent under Chagga customary law on the understanding that his tenancy would be good only as long as he paid “Masiro”.  “Masiro”  presumably is the consideration for such tenancy. The appellant  was found by the District Court to have been in occupation from 1959 to 1966, the time when this suit was filed.  The appellant brought evidence that he spent Shs.600/- for clearing and preparing the land for cultivation. At the time when his tenancy was terminated, he had not made any inexhaustible improvements on that land, apart from the clearance and preparation for cultivation. What crops the appellant had planted were annual, and not   perennial.  The court of first instance awarded him Shs.300/= for this improvement. He appealed with the result that the District Court gave him no relief at all.  On appeal to the High Court.

Held: (1) “It is not in dispute that the respondent was entitled to   terminate the appellant’s tenancy, especially after serving him twice with a written notice to vacate the land. The respondent cannot therefore be said to have sought repossession at his whim, as was the case in Mwahula Kibungo v. Mudabe Muhunguka1969 H.C.D. 274.” (2) “Compensation, however, is for improvements “of a permanent nature “ (Makofia Merianananga v. Asha Ndisia 1969 111 H.C.D. 204). Annual crops cannot be and are in fact not improvements of a permanent nature. The appellant was reaping them annually and deriving full benefit from them.  In so doing he must have been fairly and adequately rewarded for the trouble he        took to clear and prepare the land for cultivation. This is the view taken by the District Court, and I endorse it. For this reason I hold that the Shs.600/= paid by the appellant to prepare the land for cultivation was adequately rewarded by the crops he reaped from 1959 to 1966. Further, I hold that the expense was reasonable consideration for the tenancy for the seven years or so which the appellant enjoyed.” (3) “In the circumstances, there cannot be justice or reason to award the appellant any further compensation, as the District Court properly ordered.”  (4) Appeal dismissed.