Petro Baitani v. Samwel Rwekamwa. Civ. App. 236-M-69; 16/12/69; Bramble J.

 

Petro Baitani v. Samwel Rwekamwa. Civ. App. 236-M-69; 16/12/69; Bramble J.

The appellant brought a claim for damages for trespass in that the respondent had wrongfully cut 15 bananas bunches from his shamba. The proceedings on the ground that cases involving Nyarubanja tenancies were for the Nyambanja tribunal only. It was not disputed that the original owner of the shamba in question was a Nyambanja tenant. The appellant, who was the land – Lord’s son occupied it in 1944 after the tenant had abandoned it and had been using it for 23 years before the alleged trespass. The respondent admitted that the original owner, Kante, had stopped using the shamba because of illness but said that the farmer had bequeathed the shamba to him. There was no evidence whatever to support the respondent’s word on the question of the bequest and the trial magistrate held that it was not roved and found against the respondent.

            Held: (1) “There were, therefore, no conflicting claims in law as to a Nyarubanja tenancy in that the respondent was found to have no claim at all. It might have been otherwise if there had been satisfactory evidence of a bequest. In any case the matter was decided by the court of first instance on the 12^th June, 1969 when the now repealed Nyarubanja tenancy (Enfranchisement) Act 1965 was in force. Section 4(1) provided that – On the commencement of this Act, every parcel of land held, immediately before the commencement of this Act, by any person  as a tenant under or I accordance with Nyarubanja tenant shall, by virtue of this Act be enfranchised and cease to be so held. Since the trial court properly found that the landlord had resumed possession through his son, the appellant, after the tenant had abandoned the shamba, the appellant was not holding as a tenant but an owner from his point of view and the shamba did not come within the provisions of the Act. The respondent was not in possession and could not then claim to be holding under a tenancy so as to invoke section 4 (1) of the Act. This was not a dispute as to land enfranchised under the Act and the learned district magistrate was wrong in holding that it should be referred to the Nyarubanja Tribunal. Moreover, there was such Tribunal at the date of trial as it was only brought into being under the 1968 Act which came into force on the 1^st August, 1969.” (2) Appeal allowed.