Kazimoto. J.: In Langiro Primary Court Civil Case No. 14/85 the respondent Kasian I Paulo sued Gerwin Constantin and Gerion Ndunguru as the defendants for encroaching and occupying his garden. He formerly joined the appellant instead of Gerion
Ndunguru. But the trial Court advised the respondent not to join the appellant in that A case. The respondent won the suit as against Gerwin Constantin and dismissed it as against Gerion Ndunguru. Then the respondent proceeded against the appellant again in Langiro Primary Court Civil Case No. 58/86 also for encroaching his garden and occupying part of it. The trial Court decided to divide the land in dispute and gave each B party half of it. The respondent was dissatisfied and he appealed to the District Court which upheld the decision of the Primary Court in Civil Case No. 38/86. The appellant to this appeal was aggrieved and has appealed to this Court.
The appellant has filed seven grounds of appeal and in my view the most important C grounds which are decisive for this appeal are grounds 3, 5 and 7. In ground 3 the appellant has argued that according to the decision in Civil Case No. 14/85 there were clear boundaries and that both courts erred in holding that the boundaries which formerly existed have been washed away by water. In ground 5 the appellant has argued that D according to the evidence and sketch map the boundaries were clearly shown. Lastly he argued that the law of limitation has no application and should not be used to deprive him of his garden. E
I propose to dispose of the last ground first. In his judgment the learned district magistrate has stated that the land in dispute ceased to be used in 1968 and resumed to be used in 1984, sixteen years had elapsed, the limitation period had elapsed and the land had been nobody's and anyone can occupy it. With respect the learned district F magistrate had misconstrued the provisions of the Law of Limitation Act. As he has correctly stated the land was not in use for 16 years. Had it been that the respondent had been using the land for 16 years clearly there could be great force in his conclusion. In determining whether the period of limitation has run out one has to determine when the cause of action arose. Section 4 of the Law of Limitation Act No. 10/1971 states: G
The period of limitation prescribed by this Act in relation to any proceedings shall, subject to the provisions of this Act, hereinafter contained, commence from the date on which the right of H action for such proceeding accrues.
It is therefore clear that the right to sue for encroachment does not arise, however long the land stayed uncultivated, until it has been encroached upon. According to the evidence, the alleged encroachment and therefore the cause of action took place in I 1983.
The suit was instituted in 1987 and the period of limitation had not run out. Clearly the A learned district magistrate has erred.
As I have stated the appellant in this appeal was a party in Civil Case No. 14/85 over the same cause of action and he had been struck off by the action of the trial court. In B that case the respondent's suit as against Gerion Ndunguru was dismissed. The appellant is arguing in effect that having decided in favour of the respondent in that case they cannot use double standard by dividing the land into two. He has stated:
Mjibu rufaa hana sababu ya kumegewa Bustani yangu ila Mahakama kama imeona bustani C ni halali yake apewe yote si kummegea.
Apparently the first appellate Court did not appreciate this issue. The witnesses in both D cases were the same. I have gone through the evidence and there is no material difference in the testimony between the two cases. It appears from the evidence that the parties in this case are related and come from the some clan. There is evidence that once E upon a time the land in dispute was cultivated but was abandoned because of over flooding in the area. There is evidence that later the village government called upon the respondent, Gerwin Constantin and Gerion Ndunguru to clear the area and make water trenches on the area in dispute. There is also evidence that while the respondent was F bereaved the land in dispute was encroached into. There is evidence that the appellant gave the disputed area to Gerion Ndunguru who was sued in Civil Case No. 14/85. The evidence of Beatus Nduvuhela in both cases confirmed that their grandfather Holiholi gave the disputed garden to respondent when he was a small boy. Having gone through G the evidence I am satisfied that the decision of the District Court affirming that of the Primary Court in Civil Case No. 58/86 was wrong. The evidence shows that the appellant had no right to give the garden or part of it to Gerion Ndunguru. The garden in dispute is the property of the respondent. That in effect disposes of grounds 3 and 5 of H the appeal.
For these reasons the appeal is dismissed. The decision of the District Court affirming the decision of the Primary Court in Civil Case No. 58/86 is set aside and instead I uphold the decision of the Primary Court in Civil Case No. 14/85 and declare the respondent as the owner of the whole garden in dispute. I