Monica Sekaga vs Lutende Mwasekaga (PC Civil Appeal No. 37 of 1998) [1999] TZHC 375 (25 November 1999)

dJ Al - .,., -+ , IN THE HIGH COURT OF T''ft-~ ... --·· · --· -~~:-::-::-::- c::, •• ::·:··-:.-- ------· ~ . ., .. -··. -- ---- -· -··-AT~MBEYA (PC) CIVIL APPEAL NO. "37 OF 1998 ·(From the decision of the District Crrurt of Kyela District at Kyela in Civil Appeal No. 24 of 1998 - Original Civil Case No. 4/1998 of Ikolo Primary Court) BEFORE: c.B. I"J3EZI - s.n.M. JviONICA SEKAGA • • • • • • • • • • • • • • • • • • • APPELLA..~T .. VERSUS LUTENDE KAGA • • • • • • • • • • • • • • • RESP()..f\IDENT JUDGEME.T\lT :MWIPOPO_,_.i• The appellant's (Monica-d/o Sek.age 1 s} claim :for i.x:theri- tance arises out of the original .estate of her father_one w.ALILE sio MWALJALA in terms of a herd of cattle and 17 acres of land which was kept under the custody and upkeep of Jobu Y.waij(mi · the appellant' s elder brother. ·· When the said John Mwaijuni died the clan land and cattle he kept was taken over in being administered by the respondent Lutende s/o ·Mwasekaga who was the son of another brother of the appellant called Abel . s/o Mwaijuni. The appellant's advocate the learned V1r. ~'Ushokorwa original has argued that since the L· owner of the inheritance

property is Mwalile Mwaijala the true inheritors are his issues of his seed who were three namely Jobu s/o Mwaijuni who died without a child to inherit him, the appellant Monica d/o Sekaga the 2nd born and their last young brother Abel s/o V.twaijuni who is the father of the respondent Lutende s/o 'Abel Mwasekaga a ,nere nephew of the appellant. This point has merit. According to the Nyakyusa inheritance customs the surviving children in the estate of their father ••• /2 I f

.. 2 - ~ .firs-~ pr-u,s-!t.ty j.nhQJ""l.toec ri.ght& 'against all he gPaod children of the deceased vendor The respondent is a mere the grand child o:fLlate Walile s/o aijala·. Out of the children of the late their father both Jobu died and Abel died whereas their sister Monica is still alive. She has first priority right of cian property inheritance in her life time agairist all.the grandchildren of the late Walile s/o Mwaijala, This customary law was exponded even by' PW.2 Donald V.waijuni who is the ·cousin of the appellant and he . ' testified·as follows when XXned by the 2nd gentleman Assessor Mwainyekule, I quote verbatim from the primary court original file:- "Mtoto wa .Jobu ni Ifrehemu s/o ¥iWasekaga. Abel karithi rnji wa babake. Wakifa wana wote wa Walile ndipo mdaiwa ataweza kurithi. Mdaiwa huonja mali ile. IVJdai alimpa mdaiwa ayatunze yeye akiwa kwa mumewe." Paraphrased the quoted Swahili portion above means that the appellant's young brother Abel already inherited his , ,. and portin of lan~ cattle from their _common :father Walile. But, the appellant being married to another clan asked the respondent to keep :for her her portion ·of the ·inheritance which was wasted by the respondent. The respondent can only inherit from his grandfather Walile after all the children of Wallie have died. Even the respondent·h.irnself in his testimony as DW.1 Lutende Mwasekaga agreed· that he was asked by the appellant to take care of•her inheritance in . · · . of them · cattle 169Land 20 acres of land. His testimony that his elder uncle Jobu appointed him his sole inheritor can't be lawful do so true :for he ~ould ·ndt L while the appellant,Jobu's own ••• /3

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sisterr was st.i.J.l al.i-V-G. Whot Jobu meant fIUSt have- been to keep the original clan property of Walile under the guardianship and administration of the respondent for the use of the appellant while she was still married elsewhere and until she died when the clan property of Walile could respondent as one of the then be bequethad to his grandchildren with the -z beneficiaries . L . There was the further testimony of PW.3 Mwantipulo s/o Mwaijulu Mkondya to the same effect. So, as , (adv.). correctly contended by the learned Mr. Mushokorw8,Lthe appellant was entitled to be granted her inheritance under GN No. 136/1968 2nd. Schedule para 20 together with her two bothers Jobu and Abel. Since PW.2 testified that her broher Abel already took her share and Jobu too took his share it is now only the appellant who wqs entitled to inherit the clan property of her father·Walile for her use in her life time. After her death the same which can be traced back to her father would devolve to the grand-children ( all the children of Jopu, JV,onica and Abel) ,~ which would include the respondent. at that stage. The term heir in relation to clan property (property not earned through ones own sweat but inherited from parent ace another deceased relative of the same. L . etc. merely means administrator or leader unless the same property is distributed fairly for each beneficiary for permanent ownership) for good., . . There was alsn sufficient evidence tendered showing wastage and misuse of the inheritance property by the respondent contrary to the finding of the 1st appellate court -that there was no such westage proved. PW.3 testi- .. fied·that the respondent had sold 83 head of cattle out of •.• /4

4 wh.:lch 5 nf :th.em vef\9 'taken and ::iold froffl the. kraal of . . . : . ' PW •. 3 who was keeping custody of them. Moreover, the respondent chased the appellant from ·:returning to the clan land of hero~ father. That is a.wasting of the land from the use of the rightful benefic,iary,the appellant. . . ·.·. I . The decision of the 1st appellate 9ourt which hld that . i/ .• .. . . the espondent is the rightful heir of the clari p;cperty accruing to ,m from Walile Kwaijala through Jobu Iv"iwaijuni .,,,: ~ , and he shnu4':(keep both the 20 acres farm and 169 head 0£-l · .. J. cattle was erronous. It is quashed. The appellant onica . Sekaga is held to be the rightful beneficiary of the 17 acres .. her own · · as perfestimony and 169 head of cattle as admitted by respondent in court on 16/2/98 to this effect,I quote:- 11Ni kweli rnji alinikabidhi. Nilipewa Ng 1 ombe 169 na baba Jobu Mwaijuni. tarGhe 13/3/1994 wapo hai." that Translated, it means f twas true, the land was given to him and that he was further given 169 head cf cattle by his ·elder uncle Jobu Mwaijuni on 13/3/1994. The san1e inheritance properties be returned to the appellant for her ownership and use during her lif'e time after which it will revert back to the clan for the responden.:t and other beneficiaries to inherit and use it. -· ... ·· This app. is allowed with costs •. The respondent or his agents who were hlping to keep custody and safety of the Cf'.tie·:..·.fuid the 17 acres <;f .... . , /: ,_,. - . ··---" . land while the same was g1ife-n to the· respo:ndent··.\froin ... . . .., :. _.:•- r, ~ - ..... _ ...... --·,_--: , . . . -:· ,., ; 13/3/1994 un_til <today c}r_. pt:;tie&.W~~ ptii~~: __ ... •· - ., .. ·:. > .; ---1:r fc:'.· :J·-;l: ., .;\ : a- 1,.-{rl:. ··.::..;._-.• ........ . :r;_e.quisi~~-,.,u~~iplife. .o,f • saf,e}tl\f'eping .the same in ac.cor- " t,·v.i:6::_.. 't·;- ': :- . . " ' i-if' .1::;'..'. daifue wi tti· .th.<f-.Piling customs rules prevailing in the • i./5

~~ :s,dti,oh in o-~ a1 ::iriy PU.ta will bG) -<iernhied. by· the trial-primary court in their locality~ Date: 25/ll/99 Hon• E,L;K6 Mwipopo, J• • E~ L. K~ MWIPOPO JUDGE 25/11/1999 Appellant: Present in person - (Monica Sekaga) For Appellant: Mr. Mushokorwa, ildvocate ... Present Respondent: Absent B/c. Kosarnu COURT: Judgement delivered in the presence of the appellant and in the absence of the respondent. District Registrar to inform him accordingly. ELKM/JJM