The dispute in this case concerned the ownership of a shamba which belonged to one Mashakala, now deceased. The respondent alleged that she was an illegitimate daughter of the deceased, acknowledged by him, accepted in the family and declared by him in a written will as his heir to the property. However, the document purporting to be a will was not produced in court and no explanation was given as to what had happened to it. The appellant on the other hand denied that the respondent was the daughter of the deceased and contends that he was the deceased’s nephew and was appointed by him as his heir before his death. It was not disputed that the respondent’s mother was married to one Rubeshelwa when the respondent was conceived and born. Her witnesses however testified that she was daughter of the deceased, Mashakala, who was first cousin of the respondent’s mother – within the prohibited degree of consanguinity according to Haya customary law. The respondent’s mother died when she was very young and her aunt looked after her and later took her to her father, Mashakala, who paid Shs. 50/- for her clothes and kept her till her marriage. On the question of the legitimacy of the respondent, the Primary Court quoted s. 181, (a) and (b), Declaration of Customary Law of Persons, and held that none of the methods of legitimating a child there set out had been followed. The District Court, however, reversed this and held that the respondent had been legitimated under Haya custom by the payment of Shs. 50/- by her father to hr aunt. Both lower courts applied the law of Inheritance under G.N.436/63.
Held: (1) Section 181, Declaration of Customary law of Persons, could not be applicable to a legitimation which must have taken place in 1944 or thereabouts. Hay Customary law was applicable and therefore the respondent as legitimated by the payment of Shs. 50/- by her father to her aunt, which was according to Haya customary law.
Questions of succession to the estate of the deceased and the validity of his will can only be decided by the law as it was at the time of his death, i.e. Haya customary law before the Declaration. According to section 28 of Cory and Hartnoll, “should a man name in his last will a female as heiress of his immoveable property, even with the consent of the witnesses, such a testament would be considered void”.
Even if (2) above is ignored, the will was not sufficiently proved. It was not produce in court and the witnesses to its execution are interested parties. Moreover the only partly independent witness did not sign as a witness.
The choice of the appellants’ heir was supported by two independent witnesses who had nothing to gain by supporting it. Appeal allowed.
