Mkakofia Meriananga v. Asha Ndisia: (PC) Civ. App. 71-A-1966 6/5/69 Platt J.

Mkakofia Meriananga v. Asha Ndisia: (PC) Civ. App. 71-A-1966 6/5/69 Platt J.

Marusuku, the respondent’s husband, had allowed his brother, Meriananga, the appellant’s husband, to occupy and use a portion of his land. This was about thirty years before the suit. Meriananga had then divorced his wife and gone away leaving her the land to occupy and cultivate. After sometime the respondent, Asha, brought a suit before the court to have her title to the land confirmed. The Primary Court held that while Marusuku had been the fist occupier of the land and had then allowed it to be used by Meriananga, nevertheless, Asha ought to have brought the case within 12 years under rule 2, of the Customary Law (limitation of Proceedings) Rule 1963 G.N. 311 of 1964. the suit was dismissed . On appeal, the District Court allowed the appeal reversing the lower court’s holding. Mkakofia appealed stating it would be unfair to ask her to leave the land, on the grounds, inter alia, that she had used the land for more than 30 years.

Held: (1) Rule 2 of the Limitation Rules ……. Very clearly shows that no proceedings for the enforcement of a claim of this of 12 years; such period being deemed to commence on the day when the right to bring such proceedings first arose or on the day when these rules came into operation, whichever is the later. Therefore, the period of 12 years commenced on the 29^th May 1964, the date when the Rules came into operation, because that was the later date, the right to bring the proceedings having occurred sometime earlier. If that be so, then the suit was not statute barred. Perhaps I should point out that under Rule 3 (4), the Primary Court can in its discretion admit any proceedings even after the expiration of the period of limitation has expired, if it is satisfied that he person bringing such proceedings was unable for sufficient cause to bring the proceedings earlier.” (2) “The District Court did not consider what I think was the Primary Court’s main aim in dismissing the suit, namely that Mkakofia should not be disturbed after 30 years of occupation. But in any event, I think, the district Court would have come to the same conclusion. If Asha and Marusuku had opened up the land and allowed Meriananga and Mkakofia to occupy part of the land as a matter of family arrangement, then while Asha occupied adjacent land in dispute, there was no way in which Mkakofia could assert ownership of land unless she had taken some steps to deal with it against the interest of Asha. As far as I can see, there was no evidence that Mkakofia ever did so. Accordingly I cannot say that she acquired the free title to the land when her husband and her-self had only been allowed to occupy as tenants at will. Accordingly Asha’s right to the land is confirmed.” (3) Asha should have possession of the land. “But I would point out that if Mkakofia has left improvements on the land of a permanent nature, she may sue Asha for the value of such improvements. Moreover, in accordance with customary law, if she has any crops growing on the land, she shall be allowed to harvest them”. (4) Appeal dismissed.