Swalehe v. Salim, (PC) Civ. App. 36-DDM-71, 24/6/72, Kwikima, Ag. J.

 

Swalehe v. Salim, (PC) Civ. App. 36-DDM-71, 24/6/72, Kwikima, Ag. J.

The appellant sought to evict the respondent whom he alleged to have encroached upon his shamba. The parties occupied adjoining plots. The appellant contended that the respondent encroached upon his land to the extent of 37 acres. When the dispute first arose some village elders were summoned to the shamba where an indaba was held. Therese elders told the trial court that they heard the respondent admit encroaching upon his neighbour’s (the appellants) land. The indaba then declared the disputed land to be the appellant’s and apparently a document was drawn up to show the boundaries of the respective shambas of the parties. This document was not produced at the trial and despite weighty evidence to support his claim, the appellant lost at the trial and on his first appeal. The respondent called fewer witnesses than did his adversary and not all of those supported his case. Most of them knew little or nothing about the dispute and they said so in court.

            Held: (1)”The appellant’s magnanimity seems to be the real source of his trouble on the whole. For, when the indaba resolved that the respondent had encroached upon him, the appellant agreed to let the respondent occupy as a mere invitee. Little did he know that his invitee would turn against him and claim the shamba when called upon to vacate. On this aspect of the dispute, the learned appeal magistrate observed; “Appellant insists only that he lent the piece of land to respondent. But it must be remembered that even if appellant lent his piece of land to respondent, but respondent has developed it …….” This was clearly misdirection on his part, because, as this court has consistently held, no invitee can exclude his host whatever the length of his occupancy (Mkakofia Meriananga v. Asha Ndisia (1969) H.C.D. n 204). That the respondent was occupying and had even made unexhausted improvements on the shamba was not reason for him to oust the appellant who had invited him ex gratia.” (2) “The record clearly shows that the appellant proved his case at the trial and that undue regard was had to his failure to produce the document drawn at the indaba. He lost his first appeal because the appeal magistrate misdirected himself in law while the same time falling into the same mistake of placing undue importance on the document which was not all that crucial really.” (3) Appeal allowed with costs. Respondent to give vacant possession of the shamba to the appellant and if there are permanent crops grown by the respondent, appellant to compensate him at the appropriate rate.