Andrew Mwamkinga & Another vs Petro Mwakipunga (PC Civil Appeal No. 103 of 1997) [1998] TZHC 2419 (13 November 1998)

IN '11HE HIGH OOURT OF TANZANIA AT MBEYA {PC} CI.\UL~AP.PEAL NO. 103 of 1997 (From the·decieion of the District Court of. Rungwe ~t Tuki,lyu in Civil Appeal NA .. 33 of 1991 •. :.• . Before: F.N •. Mat,,golo - D:i.l3trict··Magistrate)

1. ANDR1"'W MWAMKINGA) · .. --- .. ,. k .... _ASH.E!U... M\iAMKINGA~ 0 ·• '• • • • • • • APPELLANTS VERSUS PE:CRO MWAKIPUNGA •••••••••• ~ •• • RESPONDEN1.l'. JUD3MENT .. · : ... ... "·•·, .. · This is a second appeal which is t• id of merit,., he r· ..... preferred a suit against the appellanto be;f ore,. Lupata prJ.m.ary court claiming a compensation of shs.85,000/= for expenses. incurred in developing a piece.o"r ·land. He won the suit 1 and the appellant• firet appeal -te -th& -dit;tri.et. -court o! Ru.ngwe was d:isrnis.ed .. Henee this second appeal in which the parties entered appe.ax- ... before me and said they abided by the · contents of their memorandum cf appeal and the written reply to it. The following material facts were established in evidence. The appellants bad their -brother who ha-d.. died before the suit. i:he brot¥.r l.eft. a wife·~ Laniki ····· d/o Kilewa, on the land in dispute where they had lived for about 18 years. The wife fell sick and went back to her parents for good for treatment leavin.g the .. ····· land unattend-ed. The village authority realleca.ted the land to ·the r_espondent . who started to develop it. He cleared it and cultivated it. The appellants were about and around but raised no protests. In fact they used t• visit the respondent while on the lando Then the respondent made bricks qn the land.....and started to build a house. Again the appellant~ saw all this but did nething. When only the roof remained the appellants. ra~-ebims ... .that--~~ the Ca.I'etakers-ot the l.an.d and .w~ -entitled to ita- ownership. They wanted tl:te respondent to vacate the land. Hence the suit. •••••••••• /2

• 2 - The primary court unanimously found in favour of the respondent, and the district court uphel9- that decision. The a}Jpellants were ordered to pay the respondent the compensation being claimed, else the respondent 1 s occupation :.- .. of the land remain undisturbed. I am satisfied that both courts below had arrived at a fair and reasonable decision. The appellants t qu.i.te obviously t had. lolown in g.o¢d· time about the reallocation of the land to the respondent. But they had not registered any protest with the reallocating authorityt let alone promptly so. They had seen the respondent <ievelopin.g the land, and fol'. _quite sometime did nothing to stop him. The land in dispute was clan land, and in the event that they felt that they- ·were entitled- to .. it,. thf?Y· must 1 in the circumstances, pay a compensation . ~ •. . for any development effected on ito The 8:!Ilount of compensation claimed, which was based on the. house built' Wq,S !UUY accounted !01" in e,. d&tail&d description of whav.was done and the expense ineurred .. . . Al5 such, no finger could have been . ···su.ccessful.J.y .r.a:i.eed 8gllinst the .alllount claimed .. In the event, this second· ·appeal, which is devo,id of merit, is hereby -dismissed with cost.s ber" and in the courts below. I' AT MBE'YA.

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13 Nove~ber 1998. Fo..r., Appellant; Present. -· For Respondent: Absent • .. 1 . B.Po MO.SHI

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