19761001 TZHC Mwanza

T' r_rr 1rT (irT'm .. I 1\TT -.. ..,. - AT f'JAN2A. (PC) CIVIL APPEAL NO. 147 OF 75 (From the decision of the district court of Bukoba at Bukoba in Civil Appeal No. 242 of 1974 - Before J.S. MYAMI, D.N.) (Original Ndwanilo Primary Court Civil Case No. 55/1974).. DIOCRES SEVERIAN , . . . . . . . . .. . . . . . APPELLANT versus EDWARD KAZINDUKI . . . •.. •...• ... . . . .RESPONDLNT. SUBJECT: Disposition of immovable property by widow. J U D C- Ii B N T. TL The deceased whose property give rise to these proceedings, died testate, although childless. The will, mentioned several relatives, to share the immovable property. The relevant two were Edwrd Kainduki the respondent herein, and Deocress Severian, there appellant. In the same will thewidow was allocated a shamba arroun.d the house, but with a proviso, that said that when she decided to go away, she be given 5 00 1= by the heirs, and that if she so wished, should take the iron sheets. The record does not seem, to show whether the will ever stipulated as to what should happen to the shamba so abandoned by the widow. However the leaming of the litigation seem to suggest that tiqe would be divided equally0' .. However after an elapse of time, and as the widow wanted to go away, she sold the shamba whose usufruct, she had hitherto been enjoying, to the appellant for She. 2 800 1=.. The appellant went into effectic use of the shambs, but the respondent provented him from effectively and peacefully enjoying the shamba.. The appellant specessfully filed a suit in Ndwanilo Primary Court, which held that the appellant had had a right to buy., and that having bought, he was entitled to peaceful enjoying of the same. The respondent successfully appealed to the District Court, which held that as a widow, she had no interest to sell to the appellant, and hence the appellant's appeal to this court.. The only issue is whether the widow had any interest to pass to the appellant, and f or the appellant to buy. This is issue was well dealth with by the court of appeal of first instance.. le 77(I) and 77 (4) of the Law of Persons G.N. 279 of 1963 of of the Third Schudule to Cap. 333 clearly shows, that all the widow enjoys, after the death of her husband, are the usufructs of the immovable property, till she remarries or dies. This means., she has no proprietary interest she can sell in the immovable property. whose usufruct the is to enjoy. This was also acknowledged by the tostator, who by will allowed her to remain in the shamba till such time, she decided to go, although with a proviso that she be given 500/=. It means in the final analysis, that her purported sale to the appellant had no affect of transferring property in the shamba. The appellant too, gOt no title from such sale. The widow has to leave the shamba, and go, if she so decides, but otherwise, she was well insured till her death. The District Court was therefore right in its decision, The respondent to contribute 250/= and the shamba remains the clan property, specifically belonging -to the heirs. The appellant to get his refund if he so wishes from the widow, who had no interest to pass to the appellant, in consideration of the amount she received. The appe.1 is dismissed with costs. I' 1AN7A - HIGH COURT. E KATITI $ DGE 6