ZILAJE v. FEMBERA (1972) HCD 3

(PC) Civ. App. 108-M-71; 11/12/71

Kisanga Ag. J.

The appellant’s father owned shamba and at his death, some 32 years before the action was brought, it was inherited by the appellant. At that time she was a minor and the sub-chief allocated it to his nephew who has been in occupation over since. She was successful in her claim for possession of the shamba in the primary court but the decision was reversed in the district court.

            Held: (1) “When [the appellant] argued the appeal personally in this Court, she appeared to be an elderly woman of about 40 years. If she was dispossessed of the land some 32 years ago, i.e. when her father died, this means that she was 8 years old when she was thus dispossessed. She needed another 13 years before she reached the age of majority which would enable her to sue for the land. Giving allowance for the 13 years during which she was still a minor, it follows that she had some (32-13) = 19 years during which she was of full capacity and she could have brought the action, but she did not Court will not readily interfere in order to give remedy where the party seeking such remedy sat on his rights and did not act with reasonable promptitude. For instance, in the case of Shabani Nassoro vs. Rajabu Simba (1967)H.C.D. 233, in which the facts were similar, Saidi, J. as he then was held that the court is reluctant to disturb persons who have been in occupation of the land for a long period, and having said that, he refused to give remedy where the party seeking such remedy delayed to bring the action for 18 years. In the present case the appellant is in no better position because she delayed to bring the action for the last 19 years. Again, in the case of Said Mfaume v. Rajabu Fuko (1970)H.C.D. 106, Georges, C. J.

Held:

Where a party returns after some 20 years and claims land against a person who has been occupying and improving the land then he must bring very convincing evidence if he is to succeed.” (3)”I am, therefore, of the view that the appellant sat on her rights for too long, and that she has not given any sufficient ground which would warrant interference by this Court and accordingly the appeal is dismissed.”