Lemnge v. Lemnge (PC) Civ. App. 50-A-66; ……? Bramble J.

 Lemnge  v. Lemnge  (PC) Civ. App. 50-A-66;    ……?  Bramble J.

            This was a dispute over land. The parties were half-brothers by the same father. The father had bought the disputed land which was adjacent to the established kihamba of the respondent’s mother. The father later took other wives among who was the appellant’s mother whom he put in possession of the acquired land. The appellant was born on the land. The father later removed the appellant’s mother to another shamba and brought in another wife who also gave birth here. The appellant argued that the land was his because he was born on it, while the respondent’s case was that the area in dispute was part of his mother’s land in that his father found the original area too small and increased it by buying an adjacent portion. A clan council decided that the land belonged to the appellant and the other child born there.  The trial magistrate held that under Chagga Customary Law a person cannot be removed from the place where he was born and agreed with the clan council’s decision.

            Held:  (1) “There was no statement by way of evidence of what was the Customary law applicable to the case and it could not possibly be as a wide as stated by the trial magistrate. What he said, in fact, was that if a person happened to be born on a stranger’s land he had a right to that land and could not be removed from the place. For these reasons this statement must be    rejected.” (2)  “The fact that the Clan Council favoured that the appellant cannot by itself be a basis for the judgment in that it was the very question the court was called upon to decide and it could not surrender its functions.” (3) “In such a setting the learned district magistrate was entitled to examine the evidence and draw his own conclusions. He found as a fact that the area in dispute had   been joined with the respondent’s mother’s property. The fact that    appellant’s mother temporarily resided there and gave birth to the appellant did not give him a claim. The finding is consistent with the evidence and there are no grounds for this court to interfere. The appellant had not made out a title better than the respondent who was in possession and judgment was correctly awarded against him.”  (4)  Appeal dismissed.