Mukungye v. Tegamaisho (PC) Civ. App. 88-M-70; 28/1/71; Kisanga Ag. J.

 

Mukungye v. Tegamaisho (PC) Civ. App. 88-M-70; 28/1/71; Kisanga Ag. J.

This is a suit to redeem a clan shamba which is alleged to have been sold by the respondent’s brother to the appellant. The Primary Court allowed respondent to redeem the shamba on condition that he paid Shs. 300/- to the appellant being the purchase price which appellant had paid for it. The District Court affirmed but ordered that respondent to pay compensation of Shs. 900/-. No details were given as to how the District court arrived at the figure of Shs. 900/-. The appellant appealed on the grounds that (a) the respondent was not entitled to redeem the shamba because the Customary Law (Limitation of Proceedings) Rule (G. N. 311 of 1964) whereby the time of limitation for proceedings “to recover possession of land or money secured on mortgage of land” is 12 years does not speak of redemption where thee is an outright sale as in this case so that the period applicable here was 3 months only; (b) the amount of compensation was patently inadequate; (c) the money awarded to appellant was made payable over too long a period.

            Held: (1) “It would seem to me that the expression “proceedings to recover possession of land” is very wide. It is not limited to proceedings to recover possession of land, arising out of any specified transactions respecting that land. I am, therefore, of the view that this expression includes proceedings to recover possession of land, where there was an outright sale of that land. It, therefore, follows that the respondent was entitled to redeem the clan shamba within 12 years from the time the right accrued to him,

and from the evidence it is clear that that right was still subsisting at the time he instituted the proceedings in 1968.” (Citing Evarister Martin v. Apolinary Tibishumbwamu [1968] H. C. D. 412.) (2) In assessing compensation, the correct thing to do “would be to itemize the award by showing the number of coffee and banana trees and the value of each tree as is generally accepted in the area. I believe that by breaking down the award as suggested above, it would make it more apparent, especially tot eh parties, that justice has not only been done but appears to have been done. (3) Case remitted back to District Court with a direction to make a fresh order for compensation in respect of improvements based on the number of banana and coffee trees to be ascertained by him, multiplied by the value of each tree.” (4) Respondent’s salary had been attached (to the extent of 1/3) for a considerable time before the suit and it was therefore reasonable to allow him 12 months within which to redeem the shamba. (5) Appeal allowed to the extent that District Court is to reassess the compensation.