Kasigwa v. Kalala (PC) Civ. App. 72-M-71; 17/11/71; El Kindy;

 

Kasigwa v. Kalala (PC) Civ. App. 72-M-71; 17/11/71; El Kindy;

The respondent borrowed Shs. 1,000/= from the appellant pledging his shamba as security. The document evidencing the agreement provided that the money was payable on the 30^th July, 1970. The money was not paid on that date, each side blaming the other for non-payment. The appellant alleged that as the respondent did not repay his loan he was entitled to the shamba under the terms of the agreement. The primary court ordered that the respondent should hand over possession of the shamba to the appellant, but the appellate court held that the order for possession was unconscionable and inequitable because the appellant would gain more that his correct share. It ordered instead, that the respondent should make payment of the loan to the appellant.

            Held: (1) “In my view, the agreement is a pledge agreement. It is not an agreement for sale of a shamba. And therefore, the meaning and purpose of pledge agreement should not be extended beyond its correct boundary. It is easy for a moneyed person to exploit and unfortunate person by strict construction of the document. The learned appellate magistrate was right in referring to the decisions of this court which preferred that such shamba should be sold to realise the claimed amount rather than be handed over to such claimant. The basis of it is that to allow a loaner to take possession is to unjust enrich him, and therefore inequitable in law. A person should only have his fair share. It would not be taking a fair share if such a person is permitted to take possession of property worth more than his share simple because an agreement, written or oral, stated that it would be open for a loaner to take

possession of a shamba in event of default, in this case, after reading the document, as it was written Swahili, a language I know, I find that no where does in state that the money must be paid by the 30^th of July 1970. it simply says that “he will pay” which would not justify a “mandatory” farm of interpretation. Therefore, the date of payment was not a fundamental term of contract in this case. Therefore, it was unreasonable for he appellant to demand shamba as strictly as he did as if the agreement permitted him.” (2) Appeal dismissed.