Thimotheo Jimanyika v. Hassani Jimanyika, (PC) Civ. App. 200-D-67, Biron J.

Thimotheo Jimanyika v. Hassani Jimanyika, (PC) Civ. App. 200-D-67, Biron J.

This case concerned (1) a dispute between plaintiff and defendant over the succession to a coffee plantation left by their paternal uncle who die childless at a ripe age of 70 years; and (2) the effect of a sale of the entire plantation by the defendant to the co-defendant for Shs. 4,500/-. Both plaintiff and defendant claimed to have inherited the land through oral wills made by the deceased. The Primary Court disbelieved the evidence of the witnesses called by both parties and decided that the first defendant had inherited the land because he had been left in possession there of at the date of the deceased’s death and the plaintiff had failed to establish that the property was bequeathed to him. The District Court Magistrate ordered that the land should be divided between the plaintiff and defendant, but two-thirds was to be given to the plaintiff because he had used his money to enfranchise the property from nyarubanja tenure and had redeemed it when it was pledged by the deceased.

            Held: (1) Both plaintiff and defendant were entitled to inherit the land equally on the deceased’s death intestate. (2) As the defendant had sold the land to the second defendant and received Shs. 4,500/- in respect of such sale, the former was to hand over to the plaintiff Shs. 2,250/- who was then to be allowed to redeem half of the shamba with the money so received if he wished. (3) Should the plaintiff wish to avail himself of the opportunity to redeem half or the land, the division should be made by the clan elders together with the magistrate of the Primary Court.