Bigwomunda Mulaula v. Bahanda Rwojo, (PC) Civ. App. 135-D-67, 25/4/68, Saudi J.

Bigwomunda Mulaula v. Bahanda Rwojo, (PC) Civ. App. 135-D-67, 25/4/68, Saudi J.

Deceased made a will in which he made plaintiff the guardian of his daughter; his property to pass to plaintiff upon the daughter’s death, thus disinheriting deceased’s brother, the defendant. The will was not signed by the testator or the four witnesses; no clan members were called, and no reason was given for the disinheritance. Upon the daughter’s death defendant took possession of a shamba which was part of deceased’s estate, and plaintiff then sued for possession.

            Held: Where a testator intends to disinherit the members of his family by means of Kubachwa, at least ten witnesses must be called, including either close relatives of the testator or the head of his clan or clan sub-division. The testator must give an explanation for his actions, and the prospective witnesses are to refuse to witness the will if not satisfied with his reasons. [Citing Zelamura Kanyamajugo v. Mtungi Katabazi, Civ. App. 2 of 1960, Local Digest No. 39 Cory, Customary Law of the Haya Tribe, paras. 41, 42, 44, 46, 48]. The Court stated, obiter, “I personally feel that ‘kubachwa’ is a practice that should not be encouraged as it takes its roots from the base nature of man and fosters hatred.” Defendant’s appeal dismissed.