Lweikiza v. Ndyema (PC) Civ. App. 101-M-70; 4/8/71; Kisanga Ag. J.

Lweikiza v. Ndyema (PC) Civ. App. 101-M-70; 4/8/71; Kisanga Ag. J.

            The respondent Feliciana originally sued the appellant and her (Feliciana’s) sister jointly to redeem a clan shamba which her sister had sold to the appellant without her knowledge and consent contrary to Haya laws and customs. It was established that when she became aware of he disposition she promptly brought the action. The primary court disallowed the claim, but on appeal the district court reversed the decision of the lower court and made an order for redemption upon the refunding of the purchase price ad upon paying compensation for improvements done to the land by the appellant. Dissatisfied with the decision the appellant appealed to the High Court. In his memorandum of appeal, he alleged that the respondent was not entitled to redeem the shamba because that shamba had been attached by a court order and that a proclamation of sale was duly issued when the respondent did not pay the debt. This allegation of attachment was not proved.

                        Held: (1) “The learned District Magistrate held that on redeeming the shamba the respondent should refund to the appellant Shs. 105/- being the purchase price and should also pay Shs. 650/- being compensation for improvements done to the shamba by the appellant……… (2) “I am of the view that he appellant should not be allowed to recover compensation in respect of improvements which he carried out after becoming aware that the title to the land was in dispute. I think that where, as  in this case, a person carries out improvements to the land after he becomes aware that proceedings have been instituted to dispute the title to he land, then be carries out such improvements at his own risk and he must be deemed to be prepared to take the consequences following from the dispute.” (3) (obiter) “Had the sale been concluded by an agent of the court, after the period specified in the proclamation for sale had duly expired, then the position might be guite different.” (4) “Appeal dismissed the order of the District court for compensation in respect of improvements is therefore set aside ……. The respondent is entitled to redoom the suit shamba on refunding the purchase price only.”