Bahati, J.: This is an appeal by Bilimbasa Zacharia who was the defendant in the Primary Court. Jarves John, the respondent in this appeal appeared as next friend on I behalf of Theopista Zacharia who was the plaintiff in the Primary Court. In
the Primary Court Theopista Zacharia through her next friend Jarves John sued the A appellant Bilimbasa Zacharia claiming Shs. 4,000/= for a piece of land which she had inherited from her father Zacharia and which Bilimbasa had sold away. According to the evidence adduced, Zacharia now deceased was the father of Bilimbasa and Theopista and also one Paulina the elder sister of Theopista. Because Bilimbasa had quarrelled B with his father Zacharia and because Bilimbasa behaved like a knave or hooligan, guardianship of Theopista who was hardly a year old was entrusted to Paulina. Furthermore the deceased Zacharia apportioned his land to Bilimbasa and his two C sisters Theopista and Paulina. Each one of them inherited a portion of their father's land. Then Bilimbasa sold the piece of land which Theopista had inherited to another person without the consent of either Theopista or Paulina, his two sisters. Moreover Bilimbasa who was supposed to provide the infant Theopista with necessities of life as her guardian Ddid not do so. This suit was brought to recover Shs. 4,000/= from Bilimbasa who had sold even the portion of land for use by Theopista.
In the Primary Court it was held that women cannot inherit clan land. The Primary Court Magistrate cited section 20 of the second schedule to the Government Notice No. 436 E of 1993 which states thus:
Women can inherit except for clan land which they may receive in usufruct but may not sell. F However if there is no male of that clan, a woman may inherit such land in full ownership.
The suit was then dismissed.
On appeal to the District Court, the learned District Magistrate referred to s.20 cited above. He however, held Theopista was entitled to inherit because that was the wish of G her father. He also held that the buyer of the shamba which was sold by Bilimbasa ought to have known that the shamba was in dispute and that it was not supposed to be sold. Thus the buyer bought the shamba at his own peril, concluded the learned District Magistrate. He then allowed the appeal of Theopista and ordered the buyer of the H shamba to vacate it forthwith and to claim any expenses incurred together with the purchase price from Bilimbasa. Against this decision Bilimbasa has appealed to this court.
In my evaluation of the evidence I do not think either the Primary Court or the District I Court arrived at a correct conclusion. The District Court brought in a foreign element in the case and that
is of bringing in the buyer of the land in dispute. The buyer of this land (whatever his A name is) was not a party to the suit nor was he made a party to the suit in any way. He therefore cannot be penalized unheard. Secondly, the claim in the Primary Court was for Shs.4,000/= because Bilimbasa had sold that piece of land which was for use by the infant Theopista. The claim is not for a shamba worth shs. 4,000/=. Therefore, the relief B which the District Court purported to give was not a relief which had been claimed. For these reasons, the decision of the District Court cannot be left to stand. It is hereby set aside. But that does not mean that Theopista has no relief. I do accept the law cited C above with regard to the right of women to inherit clan land (s.20 of 2nd schedule to G.N. 436 of 1963). But in this case even if Theopista did not inherit the land, certainly she had it for her own use. The appellant Bilimbasa sold this land thereby depriving her of her means of livelihood and this Bilimbasa who was supposed to be her guardian in D law was not providing her with anything for according to Cory and Hartnoll:
No heir can take full possession of a plantation until the death of his wards.
And paragraph 261 of Cory and Hartnoll provides: E
A sister may claim maintenance from her full brother whether he inherited property from their father or not.
In this case both paragraphs cited above are relevant. Bilimbasa being the only heir of his F father's plantation, is not permitted to take full possession of the plantation until the death of his wards namely Theopista and Paulina his sisters, for he is the guardian of these 2 sisters. In this case he not only sold his own land left to him for his use, he even sold the land meant for use by Theopista. It is clear that because Bilimbasa went against paragraph 261 of Cory and Hartnoll, she is entitled to claim maintenance from G Bilimbasa. In this case not only is Bilimbasa not maintaining Theopista, but he has sold even the land which would go towards the maintenance of Theopista. It follows from the above that the claim for Shs. 4,000/= is justifiable and should have been allowed. The claim of Shs 4,000/= from Bilimbasa, therefore, succeeds. The decision of the Primary H Court is reversed but for different reasons from those of the District Court. The decision of the District Court is therefore set aside and judgment is entered for the respondent Bilimbasa in the sum of Shs. 4,000/= with costs as claimed in the plaint. I