Mohamed Bandihai v. Vedasto Kabakama (PC) Civ. App. 33-M-69, 12/3/69, Seaton J.

Mohamed Bandihai v. Vedasto Kabakama (PC) Civ. App. 33-M-69, 12/3/69, Seaton J.

This appeal arises out of a suit instituted in the Kishanje Primary Court to redeem a clan shamba. The shamba had been sold by the appellant, the original defendant No. 1, to original defendant No. 2, Stanislaus. The respondent Vedesto, who is a brighter of defendant No. 2, brought this suit some 8 years after the transaction claiming that he only became aware of it when he returned from a distant village to find the appellant, Mohamed, in occupation of the land. Vedesto claimed that the land had been given to Mohamed as a pledge for the sum of Shs. 1,400/-. Mohamed said that he had subsequently purchased the land originally obtained on pledge by giving an additional sum of Shs. 50/-. From the testimony, it appears that all three of the parties are related. Mohamed claimed that they all descended from a common great-grandfather,

Bashabi. Mohamed’s father, Bandihai is the son of Bwemo and Bwemo, he claimed, is the son of Bashabi. Bashabi had another son whose name was Bakalemwa; he was the father of Ishemo and Kabakama whose sons were Stanslaus and Vedesto respectively. Vedesto did not admit this relationship saying that he did not know who Mohamed’s grandfather was but he admitted that he calls Mohamed his son and Mohamed is supposed to call him father. The assessors advised that the plaintiff could redeem the shamba and should be allowed to do so on refunding to Mohamed the money he had paid. The magistrate did not share the advice of the assessors being of the view that Vedesto was present when the sale took place and also that no right of redemption exists against a clan member. Accordingly, he gave judgment dismissing the claim with costs. The district court reversed this judgment on appeal. It held that the shamba was given to Mohamed on pledge by Stanslaus for Shs. 1,400/- and that an additional Shs. 50/- had been given for the sale but that Vedesto was entitled to redeem the shamba on repayment to Mohamed Shs. 1,450/- plus Shs. 300/- compensation for improvements. The learned district magistrate outlined the relationship of the parties as claimed by Mohamed and found: “I have scrutinized their relationship and assured myself that Vedesto is a close relative.” Nevertheless, he gave judgment that Vedesto is a close relative.” Nevertheless, he gave judgment that Vedesto is entitled to redeem the shamba. Counsel referred to CORY AND HARTNOLL,  paragraph 555, which describes how a plantation becomes Kibanja Kioruganda (under family tenure) and to page 256 where it is pointed out that clan solidarity may be broken by members of the clan moving away, for example, or by relatives supporting opposing sides after a quarrel.

            Held: (1) “It appears from the record in the present case that there was within the clan no moving apart and no break up or quarrel. The evidence of Stanslaus … confirms that all parties live in the same village and were on good terms. Learned counsel submitted this means that all the parties continued to form one “ihiga” (family). Had the parties broken up the family relationship and one of them formed another ihiga, then he would be regarded as an outsider. The case of Aloyse Ishengali vs. Malchial Lutainurwa, Appeal No. 18 of 1955 reported in the Digest of Appeals from Local Courts, Volume 111, concerned a claim for redemption of clan lands in Bukoba. In that case, the court disallowed the attempted redemption of sale of clan lands within the clan, i.e. both the vendor and the purchaser belonging to the same clan. The following passage is cited from the judgment of the Court of Appeal: “The principle underlying the law pertaining to clan lands is the protection of the family as a whole, and not the right claimed by particular individuals of that family. If redemption be permitted when sales have taken place within the family …. The process can become interminable.” The principle on which the case cited was decided is applicable to the present case. As there was no sale to an outsider, there can be no redemption of the sale by Vedesto.” (2) Appeal allowed and decision of primary court restored.