Bi Mukagilaya Bitasimbile v. Raphael s/o Rubili, (PC) Civ. App. 73-M-68, Mustafa J.

Bi Mukagilaya Bitasimbile v. Raphael s/o Rubili, (PC) Civ. App. 73-M-68, Mustafa J.

Plaintiff sued for return of purchase price paid on a clan shamba wrongly sold to her by defendant’s aunt, and for compensation for a house and other permanent improvements

She effect thereon. It was not disputed that plaintiff had paid defendant’s aunt for the said shamba. It was further established that defendant’s mother had taken proceedings in 1954 to declare the sale void. In those proceedings the District Commissioner’s Court had held the sale invalid but allowed defendant’s aunt to remain in the shamba until her death; thereafter, the shamba was to become the property of defendant’s mother. Plaintiff remained on the shamba until the death of defendant’s aunt. Defendant, as successor to her mother’s rights, recovered possession from the plaintiff who started these proceedings.

            Held: (1) It had already been decided in the earlier action that plaintiff was entitled to be refunded her purchase money; but she is not entitled to be compensated for improvements in the form of houses and permanent crops because she was aware, at the time of improving the shamba, of the dispute over her title. (2) Plaintiff should remain in possession of the shamba until the purchase price she had paid is refunded to her. (3) If plaintiff dies before receiving the purchase money, the shamba should then become the property of the defendant, and no heir of the plaintiff would be entitled to claim the sum, “for the right of the plaintiff to remain on the shamba pending the receipt of the money would be personal to her.”