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Colonial Cases

Mohamed v. Pereira and Salim, 1898

[land law]

Mohamed v. Pereira and Salim

East Africa Protectorate
Hamilton J., 1898
Source: [1898] East Africa Protectorate Law Reports 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