Issa Tasilima v. Sefu Ranyamigala, (PC) Civ. App. 224-M-68, 27/1/69, Seaton J.

 Issa Tasilima v. Sefu Ranyamigala, (PC) Civ. App. 224-M-68, 27/1/69, Seaton J.   

            The appellant Issa claimed in the primary court for a shamba. It appears from the evidence that the shamba is in the occupation of the respondent, Bi Sefu, as a “Mtwarwa” i.e. Nyarubanja (feudal) tenant. Issa claims the shamba as land lord, basing his claim on the order of Lukiko Court Kanzi in Civil Case No. 7/61. In that earlier case, Issa had sued a minor one Julius, to vindicate his ownership of the shamba and the court ordered that Issa should look after and utilize the shamba until 1968 when Julius would have attained the age of 20 years; if by then Julius did not file any claim, the shamba would belong to Issa outright. The primary court, while not disputing Issa’s title as landlord, held that by virtue of the Nyarubanja Tenure (Enfranchisement Act) of 1965, the shamba would rest in the person cultivating and maintaining it, whom the court found to be B. Sefu. Judgment was accordingly given upholding her claim. On appeal, the District Court upheld the decision and from that decision, Issa brought a second appeal to the High Court. About the facts of the case there is o dispute. Prior to 1959 one Zacharia had sought and obtained permission to live in the shamba. After his death in 1959, Zacharia’s sister, Bi. Nyamishwa, who had lived with him on the shamba, continued in occupation until 19 March 1965. On that date came into operation the Nyarubanja Tenure (Enfranchisement Act. After the coming into operation of the Act, Bi. Nyamishwa continued living on the shamba until her death in January, 1967, leaving Bi. Sefu in possession of the shamba. Prior to her death, in September, 1966, Bi. Nyamishwa, who had no relatives, made a will purporting to bequeath the shamba to Bi. Sefu who apparently had assisted Bi. Nyamishwa during her lifetime and during her illness.

Held: (1) “Section 7 (1) of the Act provides for the making of rules by the local authority prescribing the terms and incidents of tenure of enfranchised land. Section 9(3) makes void any transfer or disposition of enfranchised land between the commencement of the Act and coming into operation of the first rules made under section 7. No such rules have been made. The 1966 will of Bi. Nyamishwa was accordingly of no effect as far as the disputed shamba is concerned and its non-acceptance by the lower courts was justified”.

            (2) “The lower courts ordered that Bi. Sefu should continue to cultivate and maintain the land until rules have been made by the local authority, at which time any person feeling he has a right to the shamba may file a claim. It is to be observed that this is the result desired by Bi. Nyamishwa though it flows not from the will but from the fact that Bi. Sefu is the person appointed by a court of competent jurisdiction under section 9(1) of the Act”.

            (3) The primary court had jurisdiction to make the order it did. Such jurisdiction was not unreasonably exercised. Appeal is dismissed.