Mbughi v Ghambi (Civil Appeal Cause No 34 of 2014) [2017] MWHC 143 (24 October 2017);

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Headnote and Holding: 

This was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.

The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.

The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.

In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded with costs.