Ndamugoba Herman v. Byarugaba Herman, (PC) Civ. App. 30-M-68, 24/2/69, Bramble J.

 

Ndamugoba Herman v. Byarugaba Herman, (PC) Civ. App. 30-M-68, 24/2/69, Bramble J.

The appellant was the successful party in a claim in the Katoma Primary Court for a parcel of land. The Bukoba District court reversed the decision and this has given rise to the present appeal. The facts are that the parties are the sons of the deceased, Herman, who made a will. He pointed out to the witnesses to the will how he wanted a certain parcel of land to be divided and it was that the boundary line should pass through the middle of the big house, the Nyaruju. The respondent was the principal heir and no specific reference to the Nyaruju was made in the will. The parties to this dispute inherited the land on either side of the boundary line mentioned above. The respondent as principal heir occupied the Nyaruju, but subsequently broke it down and built himself a new house on the same spot. Half of this building, as did the Nyaruju, protrudes on the appellant’s land and he is now claiming possession of that portion of land. The present building is about ten years old.

Held: (1) “Since the Nyaruju was not specifically distributed by the will according to customary law the principal heir, the defendant, inherited it. So long as the building remained substantially the same he could occupy it and the land on which it was built, thought not as owner of the portion of appellant’s land on which it stood. Having completely broken down the Nyaruju and built himself a new hut he will have lost all rights to the occupation of the appellant’s land in that the building could no longer be considered the nyumba nyaruju in terms of the estate of the deceased and the appellant is entitled to possession of the plot in dispute. I do not, therefore, agree with the view of the District Court that the land where Nyaruju was built and where the respondent built his house was utterly his since this would not be in keeping with the terms of the will which made a firm distribution of that part of the property”.

            (2) “Having regard to the value of the house, it may be advisable for the respondent to purchase the land in question, more so as it has been standing on the spot for so long. This Court cannot make an order in these terms”. Appeal allowed.