Omari v. Omari (PC) Civ. App. 58-A-71; 10/8/71; Bramble J.

Omari v. Omari (PC) Civ. App. 58-A-71; 10/8/71; Bramble J.

            The appellant sued his elder brother in a primary court for a shamba and was successful but the decision was reversed by the district court. The parties had the same father but different mothers. The father bought the shamba in dispute and it was cultivated by the appellant’s mother for some length of time. At the deceased’s death there was still a balance owed on the purchase price of the disputed shamba and the respondent

paid it off. The appellant’s claim was based on the fact that his mother was in possession of the shamba. There was no evidence that it was not an outright gift to her, nor as to the length of time she had been cultivating it. The respondent’s case was that as the eldest son he was the heir to his entire father’s property and the payment of his father’s debt over the shamba was evidence of his assuming this responsibility. The district magistrate sitting with assessors held that being the eldest son the respondent was entitled to the shamba. He therefore reversed the decision of the Primary Court. The appellant appealed.

                        Held: (1) “I see no reason to disagree with the district magistrate”. (2) “As a result I will dismiss the appeal.”