SIMON MLELEMA v NINGISTIIWA KACHWELE 1989 TLR 115 (HC)

 SIMON MLELEMA v NINGISTIIWA KACHWELE 1989 TLR 115 (HC)

Court High Court of Tanzania- Mwanza

Judge Munyera J

13 July, 1989

Flynote

Family Law - Inheritance - Whether a childless widow is entitled to the property left

by her I deceased husband - Rule 77, GN 279/63.

1989 TLR p116

MUNYERA J

-Headnote

The appellant is appealing against the decision of the Senior District Magistrate who

had A awarded the respondent her claim of 8 cows. The appellant is submitting that

the District Magistrate had erred in law.

The appellant had sued the respondent, his step mother, the widow of the deceased

for B the recovery of eleven head of cattle which he alleged were his inheritance.

The respondent countered that said cattle were acquired through joint efforts of her

deceased husband and herself. She further contended that the clan council had

allowed her to retain 8 out of 11 cattle.

Held: (i) Under Rule 77 of GN 279/63, a childless widow is entitled to maintenance

out C of the property left by her deceased husband;

(ii) in this connection, the decision by the clan council and the District Court

to award respondent the 8 cows was valid.

Case Information

Appeal dismissed. D

No case referred to.

[zJDz]Judgment

Munyera, J.: The appellant was the plaintiff on the trial. He sued the respondent for

E recovery of eleven (11) head of cattle he alleged were his inheritance. It was agreed

the respondent was his step mother, his father married her and lived with her for

more than 20 years. His father died in 1986 and by then he (appellant) had his

separate homestead. F On the deceased's death everything remained in the hands of

the respondent. In 1987 the appellant filed this suit claiming the property left by his

deceased father, in particular he claimed eleven head of cattle then in possession of

the respondent. In her defence the defendant/respondent argued the cattle were

acquired through joint efforts of her G deceased husband and herself. She called

several witnesses who told the court that the clan council had allowed her to retain 8

out of the 11 cattle left by her husband. The trial court unanimously rejected the

respondent's defence and gave judgment for the appellant and ordered the respondent

to surrender all 11 cows to him. The respondent H successfully appealed to the

District Court. In turn the appellant brought this appeal, blaming the Senior District

Magistrate for reversing the judgment of the trial court.

The trial court erred in law. It was undisputed the respondent is the widow of the I

appellant's father, they lived together for about 25 years although they were not

blessed with children. It appears

1989 TLR p117

the appellant's mother had gone away and he himself was brought up by his step

mother, A the respondent. Rule 77 of GN 279/63 provides a childless widow is

entitled to maintenance out of the property left by her deceased husband. In this

connection there was evidence the clan council had given 8 cows to the respondent

and the decision was B a wise one, the trial court ought to have abided by it. For that

reason the decision of the District Court awarding her 8 out of ll cattle left by the

deceased was a sound one and is upheld. The appeal is dismissed with costs.

C Appeal dismissed.

1989 TLR p117

D