Thereza v. Odiro (PC) Civ. App. 174-M-1970; 25/9/71. Jonathan Ag. J.

 

Thereza v. Odiro (PC) Civ. App. 174-M-1970; 25/9/71. Jonathan Ag. J.

            The appellant and respondent were full sister and brother. On the death of heir father the respondent took possession of his various landed properties including a shamba with a permanent house thereon. He gradually disposed of the properties piecemeal without the appellant’s consent and without giving her part of the proceeds. She successfully filed an action for possession of the piece that remained. On appeal, the decision of the primary court was reversed, the learned magistrate holding that according to Kizinza customs, “a woman cannot inherit land if here is a male heir.”

            Held: (1) “The rules of inheritance as contained in G. N. 436 of 1963 are, by G. N. 130 of 1964, made applicable to the district Council of Geita. It is clear from rule 13 that women cannot inherit clan land if there are male heirs. However, it is further provided that, they can receive such land in usufruct; they cannot sell it. The decision of the primary court can only be viewed in this light.” (2) “The respondent had disposed of most of the land. At the time the appellant filed the suit he had not only evicted her from the remaining part but he was also bent upon selling it away, thereby depriving the appellant of a place to fall back to. I share the unanimous feeling of the primary court, which was supported by a number of witnesses who testified before it, that the respondent should not be allowed to dispose of the remaining portion to the detriment of his sister. ……….. The appellant should have the exclusive use of the land during her life time, and thereafter, it should pass to whoever is entitled to inherit it as part of the estate of their deceased father.” (3) “The primary court decided that the house should be sold and the proceeds divided to the parties. I agree it should be shared. It is, however, to be hoped that efforts will not be spared to get the parties reconciled and that some settlement will be reached regarding the house so as to avoid its sale or demolition to effect sale, if such efforts fail it is directed that the house should be sold and the proceeds divided equally between the parties.”
 (4) Appeal allowed.