Thereza Ngemela v. Candida Ngemela. (PC) Civ. Case 207-M-67; 18/11/69; Seaton J.

 

Thereza Ngemela v. Candida Ngemela. (PC) Civ. Case 207-M-67; 18/11/69; Seaton J.

“The appeal arose out of a contest between two sisters for a shamba valued at Shs. 400/-. The shamba which they are claiming was part of a larger whole which originally belonged to their father and passed upon his death to his son Petro, the brother of the parties. When Petro died, the original shamba that had belonged to their father was divided amongst his three sisters, that is to say, the appellant and the respondent in this suit and a third sister, Bi. Mukajuna who is now dead. Upon Mukajuna’s death, the respondent Bi. Candida who had been looking after the shamba during the later years of BiMukajan’s life, continued to live on the shamba and to enjoy the proceeds. For the past seven years since Bi Mukajan’s death, the appellant Bi. Thereza made no claim to the shamba which had belonged to Bi. Mukajuna, the subject matter of the suit, but she then filed the present suit claiming that the respondent Bi. Candida wished to dispose of it to her married daughter. As this would mean that the shamba would pass out of the clan, the appellant Bi. Thereza claims that the shamba should be divided between herself and her sister the respondent Bi. Candida. Bi. Candida objected to the claim on the ground that Bi. Mukajuna intended her to enjoy the shamba after her death although there was no written will to this effect and that the appellant Bi. Thereza’s acquiescence for seven years indicates her agreement to this bequest. The primary court of Katoma accepted the testimony of the head of the clan that they had, in accordance with the views of other clan members, divided the disputed shamba between the appellant Bi. Thereza and her sister BI. Candida, the respondent and accordingly the primary court made an order dividing the disputed shamba between them. The district court of Bukoba set aside the judgment of the primary court because although there was no will by the deceased, since the respondent Bi. Candida had taken care of the shamba and had not been specifically disinherited by will, she was entitled to its ownership. Further, the district court was of the view that the period of seven years during which the shamba had been undisturbed was corroboration of Bi. Candida’s claim.”

            Held: (1) “in my view, the important consideration is that this is a clan land and that it could not therefore be disposed of to a stranger. As Bi. Mukajuna made no will, her property must be deemed to pass as upon intestacy. The two sisters Bi. Candida and Bi Thereza are the proper heirs for the deceased Bi Mukajuna and there fore they are entitled to share the land equally between them. The decision of the primary court was therefore just and I am of the view that it should be upheld>” (2) Appeal allowed.