The plaintiff sued the defendant for recovery of a shamba. The defendant alleged that the shamba had been awarded to his grandfather in 1929 in exchange for other land. The plaintiff alleged that the land had not been a part of the exchange and had belonged to his grandfather’s brother. There was evidence that the shamba had been cultivated continuously since 1929 by the defendant’s grandfather, then his father, and then the defendant and that no claim had been made until the plaintiff attempted to cultivate it in 1964. The trial court gave judgment for the defendant on the ground of continued cultivation and the fact that no claim was made for 35 years. On appeal the district court reversed, holding that long cultivation gave the defendant no right to the land and relying on statements made to the magistrate by the villagers out of court.
Held: (1) The district court erred in taking into account statements made outside of court which were not a part of the evidence and had not been subject to cross-examination.
Under the customary law of limitation, an action for the recovery of possession cannot be brought if the land has been continuously occupied by the possessor for more than 12 years. In the present case the occupation by the defendant, his father and his grandfather should be taken as one continuous occupation by one of the parties. Appeal allowed.
