Kyokukaile v. Kikanja and four other (PC) Civ. App. 83-M-70; 17/5/71; Kisanga Ag. J.

Kyokukaile v. Kikanja and four other (PC) Civ. App. 83-M-70; 17/5/71; Kisanga Ag. J.

            The appellant Andrea Kyokukaile sued the respondents for the recovery of a clan shamba part of which the appellant’s aunt had sold to the first two respondents and bequeathed the other part to the rest of the respondents. The respondents were the appellant’s aunt’s sons and therefore belonged to a clan different from that of her father’s. The disputed land was clan land which the aunt had inherited from the father. The lower courts found for the appellant but ordered him to refund the purchase price and to pay compensation for improvements basing themselves on paragraph 561 of CORY & HARTNOLL’S CUSTOMARY LAW OF THE HAYA TRIBE which states that if the relatives concerned have not been informed of the sale of clan land, they have a right t invalidate the sale by bringing an action against the vendor who must then return the purchase price he received or allow the relatives to do so if he cannot find the money. Appellant appealed against the order. Respondents also cross-appealed.

                        Held: (1) “It would seem that the provisions of the paragraph as set out above would be applicable only where the vendor had the power or capacity to sell the clan shamba. Because, under these circumstances, the vendor would then have title to the land which title he can pass to the purchaser. The resulting sale would be a valid sale which could only be invalidated by the vendor or a clan member upon refunding the purchase price to the buyer. In the instant case however, it would appear that Josephina, the vendor, did not have title to the land which she could pass by selling it to the respondents Chrisant and Antorny. Under section 20 of the Second Schedule to Government Notice No. 536 of 1963, Josephina, being a female, could only use the clan land but may not sell it if there are male members of the clan. Since the appellant Andrea was a male member of Josephina’s clan, I am of the view that the provision of the said section 20 would operate to deprive Josephina the power to sell the land. It therefore follows that the purported sale by Josephina to the respondents Chrisant and Antony was ineffective because Josephina had no title to the land which she could pass to the purchasers.” (2) “Consequently, since there was no valid sale, the title to the land remained vested in Josephina’s clan and so the appellant Andrea, her nephew, would not be required to invalidate any sale in order to redeem the clan land. I am therefore of the view that the appellant Andrea is entitled to recover the clan land without repaying the purchase price, and it is open to the respondents Chrisant and Antony to file a suit against Josephina’s personal representatives for the recovery of the purchase price.” (3) “As regards cross-appellants Efrazia, Victoria and Francis, they contend that Josephina, their mother, bequeathed the portion of land to them in consideration for the care they took of her during her illness which resulted in her death. I am of the view that Josephina could not bequeath the land to the cross-appellant. It seems that section 20 of the Second Schedule cited above seeks to preserve clan land within the family and therefore it provides that a female may not sell the clan land if there is a male member of the family. By parity of reasoning, it would seem that the policy to keep clan land within the family would also operate to deprive Josephina of the power t bequeath the land to persons outside her father’s clan.” (4) “Appellant to pay compensation for improvements” (5) Appeal allowed in part.