Mbarwohi v. Mbarwohi (PC) Civ. App. 15-M-70; 28/4/70; Seaton J.

 

Mbarwohi v. Mbarwohi (PC) Civ. App. 15-M-70; 28/4/70; Seaton J.

The appellant/plaintiff was claiming a piece of clan land left to him by his deceased father. His story was that the shamba in dispute had been given to him by his late father; that before his father dies he had chased away the respondent, the appellant’s full brother, and had disinherited other brother Paul. However, after the father’s death, the appellant brought back the respondent and gave him some land. But the respondent sold this land to Paul. Finally, the appellant had to redeem this land with his own money. The respondent on the other hand, claimed that he had never been

chased away from the shamba. The appellant in support of his claim produced five witnesses, all of them clan members. The Primary Court, on the strength of this evidence, decided for the appellant, but the district court reversed this decision on the ground that the written will which was produced in court and on which the appellant based his claim was void as failing to satisfy the requirements of paragraphs 1-5, 17, 19 and 20 of the Third Schedule to the Local Customary Law (Declaration) (No. 4), Government Notice No. 436 of 1963.

            Held: (1) “The written will was not in conformity with the Declaration of Customary Law and ought not to have been admitted in evidence.” “It appears however that the primary court never based its decision on the purported written will. From a careful reading of the judgment of the primary court, it would appear that the will in issue was not a written one but an oral will; the primary court never dealt with the authenticity of the written will. Accordingly, the district magistrate erred in holding that the written will was void while no such written will was in issue.” (2) …. I am convinced that even the oral will did not satisfy the requirements of paragraphs 1-5, and 11 to the 3^rd schedule of G. N. 436/1963. For although the appellant contends that the oral will was witnessed by five clan members, it did not meet the requirements of paragraph 11 of Government Notice No. 436 of 1963. Paragraph 11 requires no less that four witnesses, two of whom should be clan members and the other two should be non-clan members. As it is only five clan members are said to have witnessed the will but apparently no non-clan member was present. In Deusdedit Kashanga v. Bir. Baite Rwabigene (1968) H.C.D., Case No. 165, Justice Mustafa noted that according to G. N. No. 363/63, schedule 111, section 11 reads: “An oral will must be witnessed by at least 4 persons, at least 2 of whom must be kinsmen and at least 2 unrelated to the testator. The wife or wives of the testator are additional to the minimum of 4 recognised witnesses. Since this requirement was not complied with, the learned Judge found the alleged oral will not proved. Similarly, in the present case the primary court was wrong in finding the oral will proven.”  (3) “No doubt where a testator has died intestate by leaving behind no will, the property of the deceased has to be distributed in accordance with the Law of Inheritance G. N. 436/63 which applied to the jurisdiction of the Buhaya District Council by G. N. 605/63. But the situation in this case does not seem to be governed by the law of Inheritance as set out in the Declaration of Customary Law. The appellant claims that he had been given the shamba while the father still lived. The respondent avers to the same effect, although the appellant brought the will into issue, it does not seem to this Court that the allocation of the shamba derives its validity from that will. If the shamba was allotted to either party before their father died, it could not be the subject of a will unless to confirm the same or disinherit the allottee. In the circumstances, it is for this Court to decide which of the parties was allotted this shamba, and in doing so must look to the evidence of the parties. As found above, the appellant’s claim was supported by the clan members. The respondent could gather no evidence in support of his claim. The appellant must therefore be telling a true story of the transaction with regard to this shamba entered into between him and their father at the time the latter was still living.” This Court is satisfied that the appellant has proved his claim and that the shamba with all the property on it lawfully belongs to him. (4) Appeal allowed.