Peter Merishoki v. Barnabas Kiriri. (PC) Civ. App. 98-A-1967, 4/7/69, Platt j.

 Peter Merishoki v. Barnabas Kiriri. (PC) Civ. App. 98-A-1967, 4/7/69, Platt j.

Peter, the appellant, sued Barnabas, the respondent, for title to a piece of land which he claimed his grandfather had bought from one Sumbucha. Peter’s case was that the land had been used by his family since the time of his grandfather for growing cocoyams, but he could not say how his grandfather had obtained the land. Barnabas proved that he had acquired title to the land on wither side of Peter’s shamba through his father Kiriri who had bought it from Mkerewe. He claimed that the sale had included the land now occupied by Peter and that Peter had continued to occupy the land for the previous fifteen years. Only because Kiriri had allowed him to do so.

Held: “The salient facts seem to me to show that Peter and his family appeared to have been left in undisturbed possession for something like three generations. The fact that Kiriri did not remove Peter and then Barnabas failed to remove Peter, leaving him in possession altogether for some fifteen years strongly suggests that Peter must have acquired some title to the land …. “ (2) “I agree with the District Court that Peter proved no root of title and it may well be that no custom exists, such as the Primary Court thought did exist, concerning

the cultivation of land near a spring. It would have been better had there been evidence that such a custom existed before the Primary Court relied upon it. It is sometimes said, often with justification that the assessors and Primary Court Magistrate are aware of and act upon local customs without actually spelling them out in giving their decision. But is a sound principle that if the Primary Court wishes to rely on a custom or tradition which has not been referred to in the evidence of the witnesses and parties to the case, for evidence to be recorded by the court of such custom or tradition. In this way the parties will be able to consider and question the facts on which the court proposes to base its judgment. On the other hand it is also unsatisfactory for the District Court simply to rule out the existence of a custom relied upon by the Primary Court, without itself calling evidence as to its existence or otherwise.” (3) “In my opinion the fact that Peter had been in long possession, and his ancestors before him, of the disputed land without paying Masiro and without being disturbed, and that especially during the last fifteen years, entitled the Primary Court to come to the conclusion that Peter must have acquired a right at least by prescription on the evidence before it.” (4) Appeal allowed.