Moshi, J.: This was a claim for the redemption of clan land filed by the appellant, Angelo Bisiki, against the three respondents, Antonia d/o Bisiki, Leonsia d/o Cleophace and Elizeus s/o Tinilao, at Kashasha Primary Court. H
The material facts, very briefly, were that the appellant is the brother of the first respondent. They belong to the same clan, whereas the second and third respondents are strangers to that clan. The first respondent inherited the relevant clan shamba from her father. On 11/5/86 she sold it to the second respondent, with the consent of clan I members, for shs.140,000/=. And on 12/9/86 the second
respondent, for her part, sold the same shamba to the third respondent, again with the A consent of clan members, for shs. 300,000/=.
The Primary Court found both sales valid, and permitted the appellant to redeem the land upon payment to the third respondent the purchase money of shs. 300,000/=. The B District Court of Muleba, upon an appeal thereto by the appellant, upheld the decision of the Primary Court, and gave the appellant six months to pay the purchase money to the third respondent and redeem the shamba. The appellant still felt aggrieved, and hence this second appeal.
With respect, I am satisfied that both courts below erred in law by finding both sales C valid. They had both miserably missed the legal significance of the fact that the first respondent was a Buhaya woman in occupation of clan land. On the authority of rule 2 of the Local Customary Law (Declaration) No. 4 Order 1963 - GN 436 of 1963 - D the first respondent could not have legally disposed of the land to any person, and in any manner, even with the consent of the clan. The court of Appeal discussed at length the status of Buhaya females vis a vis clan land in Deocras Lutabana v Deus Kashaga (unreported) which is Civil Appeal No. 5 of 1981. E
The same question was also the central point for determination in the recent Court of Appeal decision in Rukuba Nteme v Bi Jalia Hassan and Gervas Baruti (unreported) which is Civil Appeal No. 19 of 1986. The golden thread that runs through these decisions of the Court of Appeal is that a Buhaya female heir, having inherited clan land, F has no more than a life interest in the land, which she could neither sell nor bequeath to any person whomsoever, even with the clan consent. That is the position in law regarding the status of Buhaya females vis a vis clan land.
It follows, therefore, that the first respondent was not entitled to sell the land in question G to the second respondent. In other words, that purported sale was null and void and did not pass any title to the second respondent. Equally null and void was the purported sale between the second respondent and the third respondent as there was no title to H pass. The position in law is that the question of the redemption of the land does not arise. The land is still legally in the hands of the first respondent for use during her lifetime. Of course she will have to refund the purchase price of shs.140,000/= to the second respondent, and it shall be for the third respondent to recover the purchase money of shs.300,000/= from the second respondent. The third respondent, in all fairness, is I entitled to be paid compensation in respect of unexhausted improvements, if any,
made by him during his occupation of the land under the authority of the courts below - A that is from the date of the Primary Court judgment to the date of this court's judgment. The exact amount is to be properly assessed by the trial Primary Court after it has received evidence of the improvements made to the land during that period. And it is fair and just that such compensation as determined by the Primary Court has to be paid B by the first respondent to the third respondent since she is the one who is bound to derive immediate benefit from the land which must be vacated by the third respondent without delay.
In the result, I allow the appeal, quash and set aside the decisions of both courts below, C and hereby declare that the transaction of sale by first respondent to second respondent, and by second respondent to third respondent were, and still are, invalid. The first respondent is ordered to refund the purchase price of shs.140,000/= to the second respondent who, in her turn, is ordered to refund the purchase price of Dshs.300.000/= to the third respondent. The first respondent to pay to the third respondent compensation for unexhausted improvements, if any, to be determined by the trial Primary Court as stated earlier in this judgment. The appellant to have his costs in this court and the courts below. E
Order accordingly.
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