Lekansio v. Lekasio (PC) Civ. App. 135-A-68; 3/6/70; Bramble, J.
The respondent sued his second son and another person for a portion of a kihamba. His case was that he gave his son this kihamba to use in 1956 until he had got another shamba for him; that as the second son he could not claim it as his last born child was entitled to inherit; he sought possession as the appellant had pledged the crops to the person without his permission. He offered his son another shamba which he has refused to accept. The appellant’s defence was his father had given him the portion of kihamba as a gift and absolutely; that it was he who developed it and planted coffee trees and that he had pledged the crops for eight years as of right. Both the assessors in the primary (trial) court were of the opinion that he respondent was entitled to possession of the kihamba. The trial magistrate found otherwise stating “That shamba belongs to the grandfather of the plaintiff and Mwao is a member of that family ad he has a right to have hat shamba according to this father Lekasio. There is proper evidence that plaintiff is the one who gave him there and he has not yet closed him. As he said Mwao will stay there till when he finds another shamba, therefore, Mwao is in the shamba with the permission of his father.” The district court held for the respondent. On appeal to the High Court.
Held: (1) “The question of whether there was a gift was a question of fact and the trial magistrate ought to have given reasons why he differed from the opinion of the assessors”. (2) “(The trial magistrate) has clearly misdirected himself on the facts since the respondent said that the appellant was not entitled to inherit that portion of land. In any case the possession and use of it was conditional. On the trial magistrate’s own findings there was not an outright gif. He did not direct his mind to the fact that another shamba had been offered to the appellant and he refused to accept it. This was a valid reason for the respondent to take back the kihamba. Add to this the fact that the appellant had pledged the crop without his father’s consent, as the assessors held, there was more than enough justification for the latter’s claim.” (3) “The learned district magistrate held for the respondent for equally good reasons and they are:- (a) This case comes under Chagga customary law and according tot eh evidence defendant Mwao being the third son cannot fight for a portion of the kihamba where he was born like the first and last sons. (b) Even the first and last sons of a man, although hey have the right to fight for portions of a kihamba where they have been born cannot claim full right before their father dies – they can only sue any portion of the kihamba by permission of their father, which they cannot sell or given in pledged as has been done in this case. (c) Even the written Customary Law Rules G.N. 436/63 (Second Schedule) does not permit a son to inherit his father (before) he dies and under paragraph 30 of the third Schedule a testator may change intention as he likes. (4) Appeal dismissed.
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