Clemence v. Esteria (PC) Civ. App. 71-M-70; 7/1/71; Mnzavas Ag. J.

 

Clemence v. Esteria  (PC) Civ. App.  71-M-70; 7/1/71; Mnzavas Ag. J.                                                                                                                          

Two wives of a deceased had a dispute over ownership of a shamba. The respondent argued that by virtue of Haya Customary law, her son Albert being the first son in the senior house was entitled to be the principal heir and inherit the shamba in which his father was buried. The appellant on the other hand argued that the shamba was given to her son by virtue of the deceased’s will. Although the primary court magistrate held the will to be invalid, the court by a majority found in favour of the appellant. The District Court reversed.

Held: (1) “Questions of inheritance where Customary Law is involved are governed by Laws of Inheritance G. N. No.436/63.Section 19 of this Government Notice is to the effect that              - “The principal heir of the deceased is his first son from the senior   house. If the deceased left no son of the senior house, his eldest born son of any house will be his principal heir.”  As there is no argument in this case that Albert is the first son of the deceased from his senior house, Albert is, unless reason to the contrary is shown, he principal heir of his father’s property.”  (2)  The will produced tends to show that the deceased excluded Albert as the principal heir. “I have myself examined the document and I am satisfied that it is suffering from a let of irregularities. The alleged will is not witnessed by any kinsmen of the deceased as required by section 19 of the Law of Wills G. N. No.436/63.  None of the deceased’s wives witnessed the will. From the document it is not at all clear that the testator intended to disinherit Albert, his principal heir at law, because he does not expressly say so as required by section 34 of the Law of Wills. In KWEKAZA  vs. KYEKUZA, Bukoba  D. C’s Appeal No.69 of 1935 in which a similar dispute was in issue it was held – “That a testator cannot disinherit a person   entitled to inherit without giving sufficient reasons for the change of the rules.”  The document produced by appellant, was clearly invalid and as such the position of Albert as the principal heir remains unchanged.  (3)  Appeal dismissed.