This is followed by a note which states for this

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curred by his dispossession is not considered.” This is followed by a “Note” which states, “For this reason relatives who have only a vague right to interfere will not do so.” Held: Plaintiff was in occupation for 15 years and that would indicate that he could not be certain if the defendant was going to redeem the shamba or not. In any event, plaintiff could not be expected to keep the shamba unattended and uncultivated for all this period or to let it go to ruin. “I think that both common sense and equity would require that (plaintiff) should be entitled to compensa- tion.” Primary Court judgment restored. 348. Kimonge Mwalimu v. Kavuli Ngoma , (PC) Civ. App. 25-D-68, 25/5/68, Ham- lyn J.
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Some years ago, a certain path was used by villagers generally to take cattle to pasture. Within the past few years, respondent extended his cultivation into the track, narrowing it until it now suffices only for pedestrians. Appellant sought to re-open the track, which “saves cattle owners from driving their beasts several miles in order to get to the grazing grounds.” Held: As it appears that there is no lack of ground in the area for cultiva- tion of crops elsewhere, the track should be re-opened; the whom of a single person cannot outweigh “the established rights of the community as a whole.” “I consider that local authority might assist in demarcating the boundaries of the track so that all may be aware of the extent of their rights of passage. 349. Bi Mukagilaya Bitasimbile v. Raphael s/o Rubili , (PC) Civ. App. 73-M-68, Mustafa J. Plaintiff sued for return of purchase price paid on a clan shamba wrongly sold to her by defendant’s aunt, and for compensation for a house and other permanent improvements (1968)H.C.D. - 131 – She effect thereon. It was not disputed that plaintiff had paid defendant’s aunt for the said shamba. It was further established that defendant’s mother had taken proceedings in 1954 to declare the sale void. In those proceedings the District Commissioner’s Court had held the sale invalid but allowed defendant’s aunt to remain in the shamba until her death; thereafter, the shamba was to become the property of defendant’s mother. Plaintiff remained on the shamba until the death of defendant’s aunt. Defendant, as successor to her mother’s rights, recovered possession from the plaintiff who started these proceedings. Held: (1) It had already been decided in the earlier action that plaintiff was entitled to be refunded her purchase money; but she is not entitled to be com- pensated for improvements in the form of houses and permanent crops because she was aware, at the time of improving the shamba, of the dispute over her title.
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(2) Plaintiff should remain in possession of the shamba until the purchase price she had paid is refunded to her. (3) If plaintiff dies before receiving the purchase money, the shamba should then become the property of the defendant, and no heir of the plaintiff would be entitled to claim the sum, “for the right of the plaintiff to remain on the shamba pending the receipt of the money would be personal to her.” 350. Hamisi Mlezi v. Umoja Printers,
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  • Fall '17
  • Dean Majamba

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