Zabloni v. Agrey (PC) Civ. App. 12-A-70; 8/4/71; Kwikima Ag. J.

 Zabloni v. Agrey (PC) Civ. App. 12-A-70; 8/4/71; Kwikima Ag. J.

The appellant was sued for Shs. 1,000/- compensation for unexhausted improvements on a piece of land which he won from the  respondent in a civil case. The suit was rejected by the Primary Court because the improvements were made by the respondent for the parties’ father long before the land

became the appellant’s. The District court reversed on the ground that the respondent had cared for the improvements for 12 years since the land was given to the appellant and therefore the appellant should pay compensation for the care since it was his fault in taking so long before clearing his title. One appeal to the High Court.

Held: (1) “With all respect …………. This reasoning does not accord with justice. The respondent may have sweated for 12 years but he certainly did reap a lot for his sweat. He must have enjoyed the fruits of the development which became the appellant when the latter got the Kihamba. There is every reason to believe that the respondent must have been more than adequately compensated in the 12 years of his tenancy and to award him further compensation would not be just. It would be like punishing the appellant for his laches.” (2) “The law of limitation on customary land claims came into being in 1964. Before then there was nothing like limitation such claims. It would therefore have to be 12 years from 1964 before the appellants could be held time barred. The learned Magistrate himself conceded that the respondent effected no unexhausted developments on the disputed land. He awarded compensation only for caring for these developments although as pointed out earlier on the respondent was reaping the fruits of his sweat in the process. It has often been held that compensation is only for unexhausted developments of a permanent nature such as perennial crops, buildings etc. in this case the respondent does not claim to have made any such improvements on the disputed land. There can therefore be no basis for awarding him compensation, his 12 years of illegal occupation and enjoyment of the usufruct notwithstanding.” (3) Appeal allowed.