caritas kogha machupa another versus pudensiana michael mruma 2 others 2023 tzhclandd 17302 20 november 2023

<' ^ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 304 OF 2022 CARITAS KOGHA MACHUPA PLAINTIFF SPEEDPESA FINANCE LIMITED 2^"PLAINTIFF VERSUS PUDENSIANA MICHAEL MRUMA 1®^ DEFENDANT JOHN WAMBURA CHARLES 2"^" DEFENDANT SCHOLASnCA ROBERT KITIMBO 3^ DEFENDANT RULING Date ofLast Order: 06.11.2023 Date ofJudgment: 20.11.2023 T.N.MWENEG0HA,3- The plaintiffs above named, instituted this suit jointly against the defendants. They claim among others, for a declaration that, a suit property, located at Plot No. 452, Block B, Sinza Area, within Ubungo District and Par es Salaam Region, with a Certificate of Title JMo. 26839, belongs to the 2"" plaintiff and the plaintiff being a holder of 50% of the company, has a vested interest to the said property, which is mortgaged to the 1=' defendant. The defendants were served with the plaint and presented their Written Statement of defence. On the 29^^ August, 2023, the 1=' Pre-trial Conference was conducted as required in law, after the parties completed the filling of their pleadings. Thereafter, the matter was referred for Mediation, before Hon. Bahati. On the 25"^ October, 2023, the Mediation Judge remitted the case file to the trial Judge, stating that. Mediation could not be conducted due to non- appearance of the plaintiff. That, it is only his Advocate who has been appearing, contrary to Order VIII Rule 29 of the Civil Procedure Code, Cap 33 R. E 2019. On that account, the parties were ordered to address this Court following the non- appearance of the plaintiff as noted in the Order of the Mediation Judge. Parties complied and filled their Written submissions as scheduled. Counsel for the 1=^ plaintiff, Mr. Nyangi Owino, submitted that, the non- appearance of the plaintiff is justifiable. That he is a civil servant, working as a teacher at Kasese Secondary School, in Mwanza Region, and that constitutes a sufficient reason for his non-appearance. That, he made three unsuccessful attempts to attend the mediation session through a video conference. The attempts were facilitated by Ms. Happy Bakari and. Hellen Mallya, both being clerks at the High Court Mediation Center. Therefore, the plaintiff neither absconded the session nor disregarded it on purpose. Hence, he should not be treated as such. That, above all, throughout, when the 1®' plaintiff was not physical present before the: Meditation Judge, his advocate was there, as required under Order VIII Rule 27 (1) of the Civil Procedure Code, Cap 33 R.E 2019. To cement his arguments, he cited the case of Dominic Kitego Kifigo(as Adminstrator of the Estate of the late Simon Joseph) versus Sadie Msangi & Another, Misc. Land Application No.600 of 2022, High Court of Tanzania, Land Division at Dar es Salaam (unreported). His arguments were supported by that of the counsel for the 2"^ defendant, Advocate Caroline Mumba. On the other hand, Mr. Issa Mrlndoko, counsel for the defendant, insisted that, the plaintiff has failed to show a good cause for his non appearance when the case was scheduled for Mediation. Therefore, the case at hand should be dismissed. That, the whole story given in the submissions by the counsel for the plaintiff of trying to join the Mediation sessions via a link is made up. There is no sworn affidavit frprn the mentioned Court clerks to prove if what the counsel for the plaintiff is saying is true. It is without doubt that, it has become impracticable to conduct Mediation because of the plaintiff's failure to appear for the same, hence the case should invoke the provisions of Order VIII Rule 29(a), of the Civil Procedure Code,Cap 33 R.E 20i9 and dismiss it as stated in M/S Cide Company versus Tanzania Forest Services (TPS) Agency & Another, Land Case No. 65 of 2015, High Court of Tanzania, at Dar es Salaam,(unreported). In rejoinder, the counsel for the defendant, reitarted his submissions in chief. Having heard the submissions of the counsels for the parties, the issue worth of determination at this point, is whether the plaintiff has given this Court any sufficient reasons for his non-appearance, when this case was scheduled for Mediation. Indeed, under Order VIII Rule 29(a)of the Civil Procedure Code, Cap 33 R.E 2019,the Court has a discretion to dismiss the case, when the plaintiff faiis to appear for Mediation. For quick reference, let, me. reproduce the said provision as foliows; - "Where it is not practicabie to conduct a scheduied mediation session because a party faiis without good cause to attend within the time appointed for the commencementofthe session, the mediatorshaiiremit the fiie to the triaiJudge or magistrate who may- (a) dismiss the suit, if the non compiying party is a piaintiff, orstrike outthe defence,ifthe non compiying partyis a defendant." In the instant case, I have read the proceedings and the Order by the Mediation Judge, dated 25"^ October, 2023. In the said records, there is not any reason being given by the 1®' plaintiff for his non-appearance before the Mediation Judge. This shows that, his absence is not excusable as argued by Mr. Mrindoko. Consequently, there is nothing that this Court can rely so as to rule in favour of the piaintiff. Hence, a dismissal order is inevitable under these circumstances. To be precise, and with ail due respect to Mr. Awino, counsel for the plaintiff, I find the reasons given for no-appearance his client at the mediation session to be unfounded. The same could have been constituting a good cause, if they were at least included or reflected in the mediation proceedings. Otherwise, in my opinion, giving such reasons at this stage as given in the submissions, without evidence and without being reflected in the mediation proceedings tendered to this Court makes such arguments weak and nothing other than an afterthought. I have further noted that even the 2"'^ plaintiff never attended the Mediation Sessions. This solidifies the justification for the dismissal of this case, as stated in M/S Cide Company versus Tanzania Forest Services(TPS)Agency & Another,(supra). Therefore, for the reasons I have wondered to give herein above, I dismiss this case for want of prosecution. No order as to costs. o V >l\\ \, Mwenegoha. 2: Judge N y -7 20/11/2023