Thomas Salewi v. Issa Kirari (PC) Civ. App. 6-A-69; 17/3/70; Bramble J.

 

Thomas Salewi v. Issa Kirari (PC) Civ. App. 6-A-69; 17/3/70; Bramble J.

The respondent sued the appellant for a Kihamba. There was evidence that in 1958, at the instance of the Local Authority some people were removed from a forest reserve and settled in a particular area; the respondent was given a portion but be refused to accept it. In 1964 the appellant planted some bananas. The trial magistrate found that, “If the defendant wrongly occupied the land by himself it was a big mistake contrary to the Local Authority regulations because at that time the land belonged to the Local Authority …. According to the plaintiff’s own witness he refused to accept that land and it would depend upon the Local Authority to sue and not the plaintiff.” The district magistrate held that the respondent had proved that the land was given to him and reversed the judgment.

            Held: (1) “The district magistrate held that the respondent had proved that the land had been given to him but this was contrary to the evidence since a gift is not complete until it is accepted. Apart from the clear evidence of the respondent’s refusal there was the fact that he never entered into possession or exercised any act of possession over a period of more than six years. The weight of the evidence was not, therefore, in favour of the respondent.” (2) “I should remark that the order of the district court giving alternatives to the settlement of the issue of possession was not proper in that it did not finally settle the matter. The order was as follows – Either the appellant shall compensate the respondent at once and remove him from the land soon after the judgment or if he is unable to compensate the respondent, then the respondent shall be allowed some years to remove or exhaust his development. The second alternative was much too indefinite and could probably lead to further litigation.” (3) “I hold that the part of the judgment of the primary court which was quoted above rightly summed up the matter. The respondent had no title and so could not succeed against the appellant who was in possession.” (4) Appeal allowed.