Akilimali Rumisho v. Kaunara Kisamo, (PC) Civ. App. 98-A-66, 21/3/68, Seaton J.

Akilimali Rumisho v. Kaunara Kisamo, (PC) Civ. App. 98-A-66, 21/3/68, Seaton J.

Plaintiff sued for possession of a shamba which he had inherited from his father and which his father had in turn inherited from the plaintiff’s grandfather. Defendant, the half-brother of plaintiff’s father did not claim a right of possession, and the principal issue concerned compensation for unexhausted improvements. Defendant had originally been given possession by plaintiff’s father in 1930. The primary court found that the shamba was under cultivation in 1930 but had fallen into neglect at that time. It awarded defendant Shs. 2,315/-, being half the value of 643 banana trees valued at Shs. 10/- each, which were assessed with the aid of agricultural experts at the time of the trial. On appeal, the district court, without the aid of experts, found that the land was uncultivated in 1930 and awarded Shs. 4,630/-, the full value of the banana trees plus Shs. 230/- for pineapple and sugar cane crops which were found on inspecting the shamba.

            Held: (1) Under Chagga law, usufructuary rights over unoccupied lands were distributed by the Chief and were thereafter called a “kihamba cha asili”. Such land could, as in the present case, be given out on lease upon payment of “Masiro”. However, the original holder or his successor has a right of repossession without time limit, although his burden of proof increases with the length of the time interval. [Citing Chief Willibald  Kirita v. Salema Fumba and Ex-Chief Joseph Kirita, Moshi Appeal No. 9 of 1946; Yohanes Matsindiko v. Yohanes Moruwera, Moshi Appeal No. 5 of 1953; Joseph Andrea v. Ndebyaukina Kitumanga, Moshi Appeal No. 53 of 1959; Phillip Mtusha v. Stephen John, Local Courts Appeal No. 59 of 1962 (see Digest of Appeals from Local Courts, Vols. 1, 11, V and X)] This was a “kihamba cha asili” and it is clear that plaintiff has a right of possession despite the delay in making his claim. (2) An appellate court should not, without good reason, upset the findings of fact on which a trial court bases its estimates of damages, and no such good reason has been shown in the present case. Judgment of primary court restored.