Shechonge v. Shekuba (PC) Civ. App. 23-D-69; 8/10/70; Makame J.

 

Shechonge v. Shekuba (PC) Civ. App. 23-D-69; 8/10/70; Makame J.

            The appellant unsuccessfully sued his uncle for a piece of land alleging that the land belonged to his father who had inherited it from his grandfather. According to the respondent, the land belonged to Mbaruku Bobo his cousin from whom the appellant’s father had inherited it.  It was then used by the respondent’s sister before the respondent took over. The respondent’ story was corroborated by Salimu Mbaruku, Bobo’s son who also testified that the land passed to the appellant’s father before the appellant was born and according to Kisamba Customary Law, the land must now pass to the respondent. This view of the customary law was accepted by the primary and district courts.

                        Held:    (1) “With respect, I agree with the finding, but would qualify it by saying that the evidence shows clearly that the land belongs to the parties’ clan.  The respondent has a better claim    according to the Customary Law of Succession, but his right was of suing the land and not of disposing of it without the consent of the    other members of the clan, who would be entitled after him.  The appellant may therefore redeem the land as of right. The       respondent himself must have realized this because he indicated to the trial court that he sold the land out of desperation, he being old and of humble means, and because his nephews, including the appellant, would not assist him financially.  The appellant may therefore redeem the piece of land by paying to the buyer the purchase price, which is apparently shs.580/=”. (2)  “If the appellant wishes to redeem, he will have to pay compensation for such improvements, if any, the value of which, I direct should be assessed by the primary court magistrate and his assessors.”   (3)  Appeal dismissed.