Boniface Muhigi v. Philemon Muhigi (PC) Civ. App. 38-M-66; 18/7/67; Cross, J.

Boniface Muhigi v. Philemon Muhigi (PC) Civ. App. 38-M-66; 18/7/67; Cross, J.

In 1946, plaintiff sold a clan shamba without the permission of his paternal relatives. Defendant then brought an action in the Court of the Kanyigo Chiefdom. The judgment provided that defendant should pay Shs. 300/- to plaintiff who should use it to refund the purchase price and reclaim the land. The defendant, and he in fact entered into possession of the land. In the present action, plaintiff claimed the right to redeem the shamba for himself by reimbursing defendant for the money which he had paid as a result of the earlier judgment.

            Held: (1) The Customary Law (Limitation or Proceedings Rules, 1963, provide that the period of limitation is deemed to have commenced on the day when the right of action arose or on the day when the Rules came into operation, which ever is later. The rules came into operation on 29^th May, 1964, and this suit was filed only nine months thereafter. Therefore, the suit is not barred. (2) If a person sells his land to someone other than a member of the clan without informing his

Paternal relatives of the transaction, these relatives may invalidate the sale by bringing an action against the vendor, who must then return the purchase price or allow the relatives to do so. The land then returns to the family and becomes the property of the man who repays the purchase price. Citing Corr and Hartnoll, Customary Law of the Haya Tribe, section 560, 561,562; distinguishing section 567, which is said to refer to sales of which the relatives have been informed. Therefore, the shamba is the property of defendant.