Mzee Walipesa v. Rajabu Mgeyo, (PC) Civ. App. 128-M-66; 21/11/67, Cross J.

Mzee Walipesa v. Rajabu Mgeyo, (PC) Civ. App. 128-M-66; 21/11/67, Cross J.

Defendant inherited the land in question from his father in 1948. However, in his absence the land was taken from the person caring for it and “given” by the District Council to one Kibenga. Plaintiff in this suit is a successor in interest to whatever title Kibenga had. In 1965 plaintiff discovered that defendant’s servant had taken possession of the land and filed this action to recover it. On the first appeal, the District Court held that defendant should look to the district Council for remedy and also held that his claim to the land was time-barred.

            Held: (1) Defendant’s claim could not be time –barred, for this action was not brought by him but was brought by plaintiff for repossession. (2) Moreover, the period of limitation for any claim by plaintiff would be 12 years from 29^th May, 1964, the date the Customary Law (Limitation of Proceedings) Rules, 1963, came into effect. (3) Defendant need no seek remedy in the District Council; there is no reason for a court to perpetuate the error of the Council. Primary Court judgment for defendant restored.