Bahati, J.: Jeremiah Venant the appellant in this appeal was the plaintiff in the Primary Court where he brought a suit to recover clan land which the respondent Clementina Alexander had bought from Aulelia Ishamba who was also one of the defendants in the B Primary Court together with Clementina Alexander. The appellant led evidence in the Primary Court to show that the land in dispute was clan land and that the respondent had bought it for only 4,000/= and not Shs. 40,000/= as the agreement between Aulelia C Ishamba and the respondent shows. The appellant wanted the clan shamba returned to the clan from the respondent because the sale had been made without the witnessing of the clan members and that if any payment was to be made, the respondent should be paid by Aulelia Ishamba who had received the money for the clan land. The Primary D Court found that the shamba was worth Shs. 40,000/= and held that the appellant could redeem it at Shs. 40,000/= from the respondent. But the respondent was not to be compensated for the house which she had built in the shamba nor was the respondent allowed to harvest the coffee and bananas in the shamba. This judgment of the Primary E Court made the respondent appeal to the District Court and the appellant also cross-appealed to the District Court. The respondent disputed the order for redemption arguing that the appellant was time-barred since he failed to redeem the land within 3 months after he knew of the sale. The respondent also said in her memorandum of F appeal to the District Court that she was entitled to the compensation of the house in the shamba and that she was entitled to harvest the crops in the shamba. She went on to say that the time within which to redeem the land should have been specified. The appellant argued in his memorandum of appeal to the District Court that the sale of the disputed G land was not for Shs. 40,000/= but only 4,000/=.
The District Court found that the disputed land was clan land. It also held that the time within which to redeem the land should have been specified. It found the house in the clan shamba not an issue in the Primary Court and held that the respondent could bring a H fresh suit claiming compensation. The District Court also held that the respondent was entitled to harvest all the crops in the disputed shamba before redemption. The District Court further found the sale price for the disputed land to be Shs. 40,000/= and not only Shs.4,000/= as claimed by the appellant. In the final analysis, the District Court allowed I the appeal of Clementina Alexander the
present respondent. The court ordered that the respondent should remain in the disputed A shamba because the appellant had failed to institute the proceedings to nullify the sale within 3 months of the date on which he first heard of the sale as envisaged by para 568 of Cory and Hartnoll.
Against this decision of the District Court the appellant still disputes the finding of Shs. B 40,000/= as being the sale price for the disputed shamba. He has also argued that since none of the clan members. In support of this argument the appellant referred to Cory and Hartnoll without citing any specific paragraph of Cory and Hartnoll. Finally the appellant argued that the District Court should not have dealt with the question of delay in C redeeming the disputed land, since this was not in issue in the Primary Court and that in any case the appellant was on safari when the sale took place and that he did not delay in instituting proceedings to nullify the sale.
In reply to the grounds of appeal, the respondent argued that exhibit A in the Primary D Court clearly showed the price paid for this shamba.
The main point for decision here is whether the appellant was time-barred from instituting E proceedings to nullify this sale. I agree with the District Court that the disputed land is clan land. I also agree with the finding of the District Court that this disputed land was sold at shs. 40,000/= as the document tendered in the Primary Court shows. According to paragraph 568 of Cory and Hartnoll's Customary Law of the Haya Tribe which F book is an authority on the customary law of the Haya Tribe and which book has codified this customary law, there is a time limit for relatives to declare a sale void. This paragraph which is under the heading "Family Tenure" and sub heading "Kibaja - kioruganda" reads:
The only time limit for the institution of proceedings to nullify a sale is that they must be G instituted within 3 months of the date on which the relatives first heard of the sale.
Then we have paragraph 569 which reads: H
An interested relative, who was absent at the time of the sale, is entitled to take action whenever he returns, provided he does not delay doing so more than 3 months after his return.
Finally there is paragraph 561 which reads: I
Should the relative concerned not have been informed that a transaction has taken place they A have the right to invalidate the sale by bringing an action against the vendor, who must then return the purchase price he received, or allow the relatives to do so if he cannot find the money.
The question which may be asked again is whether the appellant was time-barred from B instituting these proceedings to nullify the sale. From the record the only evidence on whether or not the appellant was time-barred is that of the appellant himself who said that the shamba in dispute was purchased in December, 1979 and that the appellant was C absent from the village that is why he was late in instituting these proceedings. On the respondent's side we have her evidence in the primary Court to the effect that she bought the disputed shamba on 8/12/1979 and she paid the sum of shs. 40,000/= for it. D She never heard the appellant dispute this sale until only recently in October 1980 when he filed his suit. According to the court record, these proceedings were instituted in the Primary Court on 10/10/1980. The appellant did not say when he first heard of this sale. It is true from the evidence in the Primary court that this sale was made without E reference to the family. The appellant did not elaborate where he was from 8/12/79 to, say, 10/7/1980 i.e. three months before 10/10/80 when he instituted these proceedings. There is nothing to show in the proceedings that the appellant was away from the village for so long i.e. from or just before 8/12/79 to 10/7/1980. What the appellant has said in F his evidence cannot be taken to be evidence for his absence for so long. As such there is no concrete evidence to show that the appellant never heard of this sale from 8/12/79 to 10/7/1980. There is a note in Cory and Hartnoll's book after paragraph 569 which reads:
A relative who lives who lives in the same village must take action within 3 months of the sale G since it is assumed that he must have heard of it when it took place.
This note just quoted above goes to show how the relative who wants to take action is H presumed to have knowledge of any sale of which he is interested and in order to rebut such presumption one would need to show by strong evidence that he was not in the village for a long time. There is no such evidence here. Indeed there is evidence from the respondent to the contrary. The evidence of the respondent is to the effect that the I appellant heard of the sale but he
did nothing until very late when he decided to file this suit. I agree with the District Court A that the appellant is time-barred from instituting proceedings to nullify the sale of the disputed land. Since the rule in paragraph 568 of Cory and Hartnoll's book is mandatory, it follows that the appellant cannot be allowed to redeem the disputed land.
Consequently, I dismiss this appeal with costs. B
Appeal dismissed.
C
