Mwalusanya J: This matter concerns the meaning of clan land and as to when it can be redeemed. Clan land means lands which has been inherited successfully without interruption from the great grandfathers or from a grandfather by members of the same clan. The key words are without interruption. If a member of the clan sells or in any other way disposes of clan land without the G consent of the members of the clan, then the members of that clan can redeem it within 12 years - see the Customary Law (Limitation of Proceedings) Rules GN No 311/1964. If it is not redeemed within 12 years, then it is lost and it is no longer clan land. The said land becomes the property of the purchaser. H
The trouble in this case arose because both courts below and the parties did not appreciate as to when clan land can be lost. It was common ground at the trial that the grazing ground in dispute was originally the clan land of the respondent Petro s/o Miumbi. That was before the German Colonial I Administration. According to the
A appellant Jibu s/o Sakilu, the land in dispute was bought by six heads of cattle from a member of the respondent's clan named Missaa s/o Kihinya and that was during the German Colonial Administration. Then appellant testified that they have been occupying that land as their clan land since then. It was in 1989 when a member of the appellant's clan one Mr Pangi s/o Kitio sold that B clan land for one bull to the respondent Petro s/o Miumbi who is not a member of their clan. So appellant filed a suit to redeem that land from the respondent. The respondent resisted the C redemption, contending that the himself had redeemed it when he paid a bull to Pangi s/o Kitio.
What is interesting is that the respondent and his other members of the clan, conceded at the trial that they lost their clan land in dispute during the German Colonial Administration. They said that a D member of their clan Missaa s/o Kihinya did not sell it as claimed, but that as their great grandfather had failed to pay poll tax to the German Colonial Administrators, he pledged the land in dispute to the grandfather of the appellant for a bull. Since that time the land in dispute has not been redeemed by the members of the appellant's clan. So respondent said that since he bought that land for a bull in E 1989 from Pangi s/o Kitio who is a member of the appellant's clan, then he had effectively redeemed their former clan land.
It will be seen from the above account that the parties in this case are in agreement that the respondent's clan lost ownership of that land during the German Colonial Administration. They did F not redeem it, until 1989 when they attempted to redeem it. They could not redeem it in 1989 as twelve years had already elapsed. According to rule 2 of the Customary Law (Limitation of Proceedings) Rules GN No 311/1964, they could only redeem that land within twelve years from G 1964. The twelve years from 1964 ended in 1976. So since 1976 the land in dispute became effectively clan land of the appellant's clan. When respondent attempted to redeem his former clan land in 1989 he was time-barred. So the Primary Court came to the correct conclusion though through a different route. The District Court was wrong in holding that clan land can be redeemed even after the expiry of 12 years.
H In the event this appeal succeeds. The decision of the District Court is set aside, while that of the Trial Court is restored. The appellant is allowed to redeem the land in dispute by refunding a bull to I the respondent. The appeal is allowed with costs. Order accordingly.
A
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