19710602 TZHC Mwanza

I - - - c IN Ti- 111GB C0UIT OP TINZLNIA AT MWAITZA Appellate Jurisdiction / (]C) CIVIL APPEAL N0 131 OP 1970 (Prom the dccLsion of the distI'ict court of Bukoba inCivii AppeaJ. iTo 135/70 before A. N. Ruseta Beg., district mngistratc) (Original Civil Case No.136/7(0 before the Kalabogaine primary court). Bi. ZEULI)l B/TUEIU ,.......... , , . .Ap:LIJTP / versus BATAPJ1A[JITD[J . ................O..R5PODI1P1?

JUDGBENT KISIUTGA, AgJ The Lppe11ant Zeulia Katunclu filed an antion in the primary cc at Kalabagakno, Bukoba district, to challenge the will iereby the respondent Batamahai Katunclu purparted to dispose of a clan shoraba by will. The primary court found for the appellmt but on appeal to tho district e urt, the judment of the lower court was reversed. The apuol. now appeaajs to this Court. The respondent was alive during the proece- dings in he lower courts, but she died after the appeal was loded in Court are. ,ftcr she had duly comaumicated to this Court her uritten repi to the Liepor,­ndLu:l of appeal. Thu brief facts we:r that the appellant and the respondent were sisters. The u±t land is clan land which belonged to their fathcr inherite I that land, upon the death of their father The land was parth tioned so that each of the parties had her separate portion. The respa dent sought to bequeath her partion to one Gabriel s/o Nlc:ana, her ncpha.:. and the 1,ap -pollcxA' challenged the bequost The primary court magistrate, agreeirg with his two assessors 9 found flior the appellant on the ground that the land being clan lent, respondent had no right to dispose of it by will and that she only iad right to use the fruits of it during her life time and after her it 'Would remain to be used by her relatives. In reversing this finding however 9 the district c ou't took the view that

the beouc'st was v0lid becnuse the respondent who made the bequest and Gabriel to when the bequet was made belonged to •the same clan 9 and in arriving at that concl/,sion, he ralied on the provisions of sections 20 and 31 of the second schedule to Government Notice No. 436 of 1963 There vms evidence given by P.W711.2 9 3 and 4 to the ef::act -titthc / appellant end the respondent have a brother called Kaaumba Kmtundu This brother has been away for a long time and upon the death of their father thc sisters were allowed to remain on the lend nd to look after it hilo enjoying the fruits thereof until their aid brother comas bac,. Thi evidence wOn not chcllanged Nor was it shors that the said bro is Iden.d. Since there is nothing to snggest that the said Kashumba u .. .2 Katundu is not/a brothei- of the appellant arid the rcspoi':clont, it ioileaza ti- t ti :c11iba is the heir to his father' s land, and the tub t that land is e;.:ted in hin so that in the absence of any sugestion that Kashunba is dLa, I an of the vi.ew that there is.nothini; to divest tUt title 11 C to vest it in Gabriel, his nephew. Consequently, should Koshunba tu:9c Up at any tine, he has the right to cl. , % j-Ei possession to the land /ancJGr.bricl cannot resist such clam. there was evidenco thct the respondent had pledged her portion of sheuba and that the appellant redeened. it by repayin': the plodged

uo1cy The respondent did not refund the rodolm.Dtion noney to appolien/ This evidence was contradicted and in fact it was coikuu .0 by the res/oiedent in her own written reply to the :rou;ads of aped co th: to ny nin, the respondent t s act of devising to Gabriel her usufructaaa right to ha land would be objectionable even toui Gabriel was a of her fattherts clan.. For, even although her ct would not uount to taking tip.e. land. or part of it outside the clan, I think that she vras act entitbcd/ to devise her usufructuary right to any nenber of. the fri:ily before io radaeiption noney was refunded to the appellaut Ior tivae reasons, I would set aside the judguent of the disac±ct court 7nd ro;::t'e th.t of the prinary court. Consccuently, the ap1.aI ta allowot with costs, but since the respondent died before th deteruin.iioa of thus appeal, the appellant should be at liberty to pioceed against t. perso7al representatives of' the respondent to recover 1er costs of 1eis appoail. / In order to reininise costs, this judont is, at the request of th appellant, trcnsnitted to district court, Buitoba, which should sLen:ioa the /appellant and deliver it tuo iior / '(F. li. isanga) 2/6!/1971. Ag.JUDGE"