Bombo v. Gadiye (PC) Civ. App. 20-A-70; 12/2/71; Kwikima Ag. J.

 

Bombo v. Gadiye (PC) Civ. App. 20-A-70; 12/2/71; Kwikima Ag. J.

The respondent was given permission by an owner of land to use a narrow strip of land as a cattle track so that the respondent’s cattle would not trespass on the appellant’s adjoining shamba. The respondent decided to start planting crops on the strip. The appellant and the owner of the land objected to this move. Whereupon the appellant took the dispute to court. The Primary Court held that the respondent should vacate the strip on recovery of Shs. 20/- from appellant for improvements made on the strip. The District Court reversed holding that permission given to respondent to occupy the strip could not be withdrawn because respondent had been in occupation since 1963

            Held: (1) “This clearly is a very serious misdirection as the case of Kisema Ndutu v. Mahselo Mishinga 1968 H. C. D 8 shows. In that case the plaintiff was permitted to cultivate a piece of land by the defendant’s father. Eight years later the defendant withdrew the permission. The Court found itself unable to infer adverse possession as there was no evidence that Sukuma law would permit such inference. Such is the case here. The learned District Magistrate had no evidence to infer adverse possession under Mbulu/Iraqu law for a period of about seven years only. So that when Kwatlema or Ami sought to dispossess the respondent, they were fully entitled as the Primary Court rightly concluded. The learned District Magistrate would have been entitled to reverse the Primary Court, however, had the respondent occupied of twelve years or more (Paskasis Bwaham v. Aloys Cyrilo 1967 H. C. D 117). The respondent was a tenant at will and no notice to quit was required. This, or course did cause the respondent some loss for which compensation was commendably ordered. The respondent’s insistence on continued occupation in spite of the termination of this tenancy is unjustified despite the contrary view of the District Court.” (2) Appeal allowed.