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Colonial Cases

Sudi Bin Muslim v. de Souza, 1898

[land law]

Sudi Bin Muslim v. de Souza

East Africa Protectorate
Cator J., 1898
Source: R.W. Hamilton, East Africa Protectorate Law Reports (Stevens and Sons, 1906)[1]

 

ORIGINAL CIVIL

O.C. 285/1898

Before Judge CATOR.

SUDI BIN MUSLIM v. M.  R. DE SOUZA.

Land in Mombasa - Local custom regarding land below the eaves of a thatched house.

   Held. - Land under eaves of thatched house is presumed to be part of the land on which the house stands.

   Parties in Person.

   In this case the defendant, a Goanese, having purchased a thatched house, with the ground on which it stood, from a Swahili, commenced to erect a stone building on the site, placing the foundations on the line formerly covered by the extremity of the thatched eaves of the old house.  The Plaintiff, his neighbour, contended that by so doing he was encroaching on his land.  The matter was referred to the Acting Liwali and the Kathi of the town, an in accordance with their report judgment was given.

   JUDGE CATOR. - Ali bin Salim and the Kathi both agree that in the absence of evidence to the contrary the ground under the eaves of defendant's house must be taken to belong to him.  The Plaintiff produces no evidence to the contrary, so I must dismiss the action.

   (Action dismissed.)

Note

[1] Cf. Adamji Alibhoy v. Adam Ali, O.C. 1053/1898, p. 6; Sudi bin Mohanmed v. Pires Pereira, O.C. 358/1898, p. 3.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORIGINAL CIVIL.

358/1898

Before JUDGE HAMILTON.

SUDI BIN MOHAMED V. PIRES PEREIRA & Md. B. SALIM.

Land in Mombasa - Local custom, regarding land below eaves of thatched house - "kitoto."

   Held. - In the absence of evidence to the contrary a width of three feet below the eaves of a thatched house is presumed to belong to the land on which the house stands.

   Parties in Person.

   In this case the defendant sought to build an upper storey on to his house, and to add eaves in such a way that they would project over the eaves of the adjoining one-storied house belonging to the Plaintiff, alleging that he had a right to the strip of ground, or "kitoto," between the houses.

   The Plaintiff on the other hand claimed the strip of land and the right to build against the defendant's wall.

   JUDGE HAMILTON.

   This is a case in which the Plaintiff wishes to remove defendant's roof over his ground, to restrain Defendant from allowing the water from his house to fall ion his ground, and from opening windows or air-holes overlooking his property.  It is admitted on both sides that the defendant's house was standing long before the Plaintiff began to build, and at the time the Plaintiff bought his land, boundaries were extremely vaguely mentioned and there are no deeds giving measurements.  What, however, I have to decide is to whom the disputed strip of lands belongs, and I have come to the conclusion that by the custom of the country it must be taken as belonging to the defendant.  For three feet under the eaves is by custom the property of the house owner.

   Now, the Plaintiff wishing to extend his building operations has claimed the right to build close up to defendant's wall, but the evidence of his own witnesses is that the old house of Mohamed bin Salim (the defendant) had a makuto roof, which would be sufficient evidence to show that he had the ground under the eaves, and that Plaintiff cannot claim to build against his wall.

   (Action dismissed.)

NOTE. - Cf. Sudi bin Muslim v. M. R. de Souza, O.C. 285/1898, p. 2; Adamji Alibhoy v. Adam Ali, O.C. 1053/1898, p. 6

Published by Centre for Comparative Law, History and Governance at Macquarie Law School