Mashanshare v. Amina (PC) Civ. App. 75-M-71; 11/12/71; Kisanga Ag. J.

 

Mashanshare v. Amina (PC) Civ. App. 75-M-71; 11/12/71; Kisanga Ag. J.

The respondent unsuccessfully sued the appellant in the primary court for the recovery of a piece of land, but on appeal to the district court that decision was reversed. The appellant, therefore, appealed to the High Court. The suit land was clan land originally belonging to M, decreased Sometime previously M had pledged the land but his brother Mpanju, also deceased, redeemed it for Shs. 800/= and gave it back to him. M had no children and in 1958 he bequeathed the land to the respondent who was a member of the same clan. The appellant was also a member of that clan. M died in 1970 and the appellant opposed the bequest on he ground that when M’s brother redeemed the land. It became his property and it ceased to be the property of M, so that

(1972) H.C.D

- 9 -

Upon the brother’s death the land should descend to his heir, M therefore had no right to bequeath it to the respondent as he did.

            Held: (1) “[T]here is evidence to show that after Mpanju had redeemed the land he restored it to Mohamed and that in doing so he imposed no restrictions on how Mohamed may deal with the land. P.W. 3 testified that Mpanju redeemed the land in order to keep it within the clan, and P. W. 4 said that Mpanju gave the land to Mohamed without any restrictions. It would seem from this that there was nothing to restrict Mohamed in his dealing with the land as he liked provided that in so doing he did not offend the rules of customary law by taking the land outside the clan to which he himself and Mpanju belonged.” (2) Appeal dismissed.