The district court for further evidence on the issue

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the District Court for further evidence on the issue of the number of cattle origi- nally given. The court stated, Obiter; “(A) s the appellant has already been paid bride price a second time on the second marriage of daughter, it would only be fair that
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he should make full restitution of the bride price paid on the occasion of the first marriage.” Held : As was found by the assessors in both courts below, “inheritance in this tribe is traced through maternal uncles and this is exactly what had taken place in this case.” Citing Vol 11, Kilosa District Rules 71 and page 6 of File No. 1/3/C/1 Provincial Office, Eastern Province (from the Archives). (1967) H.C.D. - 30 – 116. Naisikie s/o Lolemore v. Mbaya s/o Ikayo , (PC) Civ. App. 166-D-65; 23/5/57; Saidi, J. Mbarukuyu, the widow was originally married to defendant’s brother to whom she bore three children. She left her husband who thereafter died. After his death, she married plaintiff, who paid the normal bride price to her father, but she soon left him. She had two more children, the paternity of whom is uncertain. Plaintiff sued for the custody of Mbarakuyu and the five children. Held: (1) The marriage to defendant’s brother was still in still existence at the time Mbarakuyu married plaintiff; the bride price to her first husband had not yet been repaid. (2)Under Masai custom, children born of a married woman in such circumstances belong to the husband whose marriage has not been child- ren, who together with their mother were living with defendant, plaintiff’s appeal was dismissed. 117. Paskazia d/o Bwahama v. Aloys Cyrilo , (Pc) Civ. App. 182-D-65; 19/5/67; Saidi, J. Plaintiff sued for the redemption of a clan shamba under the Buhara customary law. The land allegedly was sold by plaintiff’s brother, acting as administrator of plaintiff’s father’s estate, in 1937 to defendant’s father, from whom he inherited it in 1953. The sale price was Shs. 3000/-. The signatures on the documents of sale appeared to have been forged.
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Held : (1) According to the customary law of the Haya tribe, land is consi- dered to be the joint property of a clan and may be redeemed by a member of the clan if it is sold to a stranger by an individual member. However, suits for re- demption should be brought within three months of the date of sale or of the date the interested clan member first hears of the sale. Citing Hans Cory and Hartnoll, Customary Law of the Haya Tribe. (2) Since the signatures on the sale docu- ments were forgeries, and since the sale price appears to have been below the value of the land, the evidence supports a finding that no sale took place. Thus the question of redemption of the shamba would not arise. (3) In order to support a claim to the property based upon adverse possession, defendant must show that he has been in continuous and uninterrupted possession of the shamba for twelve years or more. (4) If he has not obtained title to the property by adverse possession, defendant would nevertheless be entitled to fair compensation for any improvements he may have made. The appeal was allowed and the case
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  • Fall '17
  • Dean Majamba

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