Merchior v. Nyamaishwa (PC) Civ. App. 181-M-70; 5/7/71; El-Kindy Ag. J.

Merchior v. Nyamaishwa (PC) Civ. App. 181-M-70; 5/7/71; El-Kindy Ag. J.

            The parties were disputing over a ½ acre shamba worth Shs. 150/-. The appellant claimed that he had inherited the shamba from his father who died in 1966. it was an accepted fact that the respondent had been in occupation of the shamba since 1948, that is, in continuous occupation and use for a period of no less than 24 years. The issue was whether the disputed land had been sold to the respondent as he himself claimed or simply pledged to him as the appellant claimed. The trial court fund for the appellant after rejecting the respondent’s evidence. The District Court reversed and also held that the suit was time-barred relying on G. N. 311/64 section 97/63 Wilfred and Mashauri C & H 224, that the time of limitation was 12 years, but here the action had been commenced 24 years after the respondent came into possession.

                        Held: (1) “With due respect to the learned appellate magistrate the computation of the period was not accurately calculated. Time begins to run against a party a from the time when the right to bring action first accrued or on the day when the limitation Rules (G. N. 311/64) came into operation, whichever is the latter. In either case, these proceeding were not time barred. As against the appellant, the right of action first accrued in 1966 when she inherited the property of her deceased father, and therefore time can only be counted as against her as from  that date. Before that she was not interested in the property, as her father was still alive and time, if at all, was running as against her father, and not against her. In the alternative case, these Rules came into operation on the 29^th of May, 1964. therefore, counting from either starting points, the appellant’s counting from either starting points, the appellant’s suit was still within the period of 12 years provided for (see also BONIFACE MUHIGI v. PHILEMON MUHIGI, 1967, H. C. D. No. 231).” (2) [After examining the evidence] “With due respect, I see no valid reason shown why the trial court erred in rejecting he respondent’s case in toto as it did. In my view, for the reasons the trial court gave, it was entitled to reject the respondent’s claim. Having rejected the respondent’s claim as it did, the trial courts was left with the will of Merchiro which sufficiently showed that the shamba in dispute was pledged to the respondent. In my view, therefore, the decision of the trial court was sound.” (3) Appeal allowed.