Jafenia s/o Shimba v. Musuka s/o Nyanda, (PC) Civ. App. 180-M-66, 22/11/67, Cross J

Jafenia s/o Shimba v. Musuka s/o Nyanda, (PC) Civ. App. 180-M-66, 22/11/67, Cross J

Plaintiff sued for possession of property possessed by defendant. There was conflicting evidence as to whether plaintiff had sold the land to defendant or had merely sold two houses on the property and given him permission to cultivate the land, accused constructed a house upon the land. The Primary Court ordered that plaintiff pay defendant Shs. 1,603/- before retaking possession. This award was reversed by the District Court.

            Held: (1) Under Sukuma Law, plaintiff could not sell his holding or enter into any transaction in which the land was the subject, but could only lend the land. [Citing Cory, Sukuma law and Custom, Rules 380, 414.] (2) Defendant knew he had only a right to cultivate the land, and the construction of the house was unjustified. Sanction should not be given to this illegal act by permitting defendant to remain in possession for life as suggested by his counsel. Appeal dismissed.