Bi Temalilwa d/0 Bijumi v. Bernardino Baitilwake, (PC) Civ. App. 80-M-68, 19/7/68, Mustafa J.

Bi Temalilwa d/0 Bijumi v. Bernardino Baitilwake, (PC) Civ. App. 80-M-68, 19/7/68, Mustafa J.

First defendant had, by a will, bequeathed a clan shamba to second defendant, The shamba belonged to one Biyongo, after the death of his father. Biyongo left a daughter, Bi Kibihile, who as a female could not inherit the clan shamba. The chief of the area attempted to dispossess Be Kibihile’s aunt of the shamba but his attempt was successfully resisted by plaintiff. Upon Be Kibihile’s death, the first defendant made a written will, which was disputed by plaintiff, bequeathing the shamba to second defendant. Defendants alleged that the matter was res judicata; in two previous actions brought by the plaintiff, plaintiff had failed to obtain an injunction preventing first defendant from building a house on the shamba, and failed to obtain a declaration that he was first defendant’s guardian. In the first of these cases, the Primary Court Magistrate had specifically left open the question of plaintiff’s right of inheritance. Plaintiff was a closer blood-and clan-relative of the first defendant than was the second defendant. It also appeared that on one occasion plaintiff had redeemed a portion of the shamba which had been sold by the first defendant to a third party. Both the Primary Court and District Court of Bukoba found for plaintiff in this action, which was brought to invalidate first defendant’s will and the bequeath to second defendant.

            Held: (1) The evidence establishes that the right of plaintiff to inherit the clan shamba was “much greater” than that of second defendant, and that the “clan members were in favour of (plaintiff) being the heir of (first defendant).” (2) The right of a testator to bequeath property to whom she likes is restricted in respect of clan shambas. In Section 38 and 39 in Third Schedule (Law of Wills) of the Local (Declaration) Order, G. N. 436/63, it is provided that a will which disinherits a person “Without just cause” may be set aside, such a matter “being decided by a family council …..” Since the clan members favoured plaintiff in the hearing below, the courts’ finding that the will was invalid should not be upset. (3) The matter was not res judicata, since the question of inheritance of the clan shamba was not at issue in the previous actions brought by plaintiff. Appeal dismissed.