Henrico s/o Welengaile v. Felician s/o Kiraama, (PC) Civ. App. 111-M-68, 15/8/68, Mustafa J.

Henrico s/o Welengaile v. Felician s/o Kiraama, (PC) Civ. App. 111-M-68, 15/8/68, Mustafa J.

Both plaintiff and defendant are members of the same Haya clan and each owned a clan shamba. In 1950, defendant mortgaged his shamba to a stranger. Plaintiff redeemed the shamba and remained in possession. In 1967 defendant refunded the mortgage money to plaintiff and claimed possession of the shamba. Plaintiff filed action for Shs. 4200/-, being compensation for the improvements which he effected on the shamba. The Primary Court, after visiting the site, ordered the defendant to pay Shs. 1010/60 as compensation. The District Court, however, reversed that decision, and relying on Cory & Hartnoll, Customary Law of the Haya Tribe, para 567, held that no compensation was payable. Paragraph 567 reads: “Right of Original Owner. At any time the original owner or has direct male descendants have the right to claim the return of the relative who redeemed it on payment of the redemption price. Any hardship to the present occupier incurred by his dispossession is not considered.” This is followed by a “Note” which states, “For  this reason relatives who have only a vague right to interfere will not do so.”

            Held: Plaintiff was in occupation for 15 years and that would indicate that he could not be certain if the defendant was going to redeem the shamba or not. In any event, plaintiff could not be expected to keep the shamba unattended and uncultivated for all this period or to let it go to ruin. “I think that both common sense and equity would require that (plaintiff) should be entitled to compensation.” Primary Court judgment restored.