bhoke joseph mahucha administratrix of the estate of joseph mahucha vs kiseku marwa wambura another 2023 tzhc 22750 15 november 2023

Page 1 of 6 IN THE HIGH COURT OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA MISC. CIVIL APPLICATION NO. 90 OF 2023 (Arising from Misc. Civii Application No. 11 o f2023: Origination from Labour Dispute No. CMA/MZA/170/2021/10/2022 in the Commission for Mediation and Arbitration) BHOKE JOSEPH MAHUCHA, as administratrix o f o f the estate o f the late JOSEPH MAHUCHA MARO BACHUTA............................................................APPLICANT VERSUS KISEKU MARWA WAMBURA................................... 1st RESPONDENT SERENGETI SECURITY SERVICE LTD..................... 2nd RESPONDENT RULING Date of last order: 10thNovember 2023 Date of Ruling: 15th November 2023 MTEMBWA. J.: Under Order XXI Rule 57(1), sections 68(e) and Section 95 o f the Civil Procedure Code, Cap 33 [R.E 2019], the Applicant is pleasing this Honourable Court to investigate on the propriety or lawfulness of the attachment of the Japanese Motor vehicle registered as T746 BJT, make Toyota Noah in execution of a decree in Misc. Civil Application No. 11 of 2023. That upon such Page 2 of 6 a decree in Misc. Civil Application No. 11 of 2023. That upon such investigation, the said motor vehicle be released unconditionally. The Application was supported by an affidavit of the Applicant. During hearing Mr. Benson Benard, the learned counsel, appeared for the Applicant and hearing proceeded orally exparte against the 1st and 2nd Respondents. From the facts as revealed by the Affidavit and attached documents, the Applicant is the administrator of the estate of the late JOSEPH MAHUCHA MARO BACHUTA having been so appointed on 26th September 2022 vide Probate and Administration Cause No. 12 of 2022 in the District Court of Ilemela in Mwanza Region. That, by her position as such, she became to learn that on 3rd July 2023 the said Motor Vehicle registered as T746 BJT, make Toyota Noah in the name of the deceased was attached as a property of the 2nd Respondent in execution of a decree in Misc. Civil Application No. 11 of 2023. Expounding further during hearing, Mr. Benard alleged that the attachment of the said motor vehicle was erroneous as the same does not belong to the 2nd Respondent but it forms part of the estate of the late Joseph Mahucha Maro Bachuta. He implored this Honourable Page 3 of 6 Court to investigate and if satisfied, release the said motor vehicle unconditionally. Indeed, Order XXI Rule 57 (1) o f the Civil Procedure Code [Supra) provides as follows; "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution o f a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination o f the claimant or objector and in all other respects, as if he was a party to the suit". From the above quoted passage of the law, objection proceedings must meet the following vital conditions; One, that there must be an attachment of the property, the subject matter of the Application. Two, the attachment must be made in the execution of the Decree. And three, the objection proceedings must be filed by a person who was not the party to the suit (see Katibu Mkuu Amani Fresh Sport Club vs Dodo Umbwa Mambo Mbaya and another (2004) TLR 326). Guided by the dictate of the cited law, the question would be whether the instant application is within the ambit of the cited Page 4 of 6 section, that is, whether the three conditions mentioned above are met. It must be noted that the above stated conditions must feature before the Application is granted. Before I proceed however, I think it is pertinent that I reproduce Paragraphs 3, 4 and 5 of the Applicants Affidavit; 3. "That on J d July 2023, it came to my knowledge that a motor vehicle with registration number T746 BJT has been applied to be attached as property o f Serengeti Security Service Ltd by the first Respondent in this application. 4. That after being aware o f such fact, the applicant conducted an investigation which reveled that there is a pending execution registered as Misc. Civil Application No. 11/2023 of this Honourable Court to wit the applicant is not among the parties (Copies o f Application of Execution and Warrant of Attachment are herewith annexed and collectively marked as DLC1) 5. That the Motor Vehicle which is mentioned in the Application for execution was erroneously mentioned as the same belongs to the late JOSEPH MARO BACHUTA. (a copy o f motor vehicle registration is herewith attached and market as DLC 2)". During hearing of the Application Mr. Benard stated by submitting that the said Motor Vehicle was attached but later on made a U-turn Page 5 of 6 and narrated that the Applicant came to note that the said motor vehicle was mentioned in the Application for execution which is pending in this Court. Looking at the quoted paragraphs above and from what was buttressed by the learned counsel during hearing, it is evident that the said motor vehicle has not been attached. The Applicant came to know of the inclusion of the said motor vehicle in the application of execution. Nowhere it has been clearly provided for that when and or who attached the motor vehicle. In short, the Motor vehicle has not been attached. In such circumstances, the Application falls short of the first and second conditions as explained above. The third condition appears to have been met because the Applicant is not part of the said Application for execution which is pending. The Applicant did not even join the court broker for obvious reason that the attachment has not been done. It could appear the information were obtained upon perusal of the Court file. Although it appears that a warrant of attachment was issued to Rebeka Bahati Albinus of Nutmeg Auctioneers & Property Mangers Co. Ltd, the attachment has not been done to date because it could have been so reflected in the pleadings. Hesitatingly, this is a fit case where the Application is refused for being premature. Page 6 of 6 This Court happened to face the same circumstances in the case of Abdallah Sa/um Lukemo & 18 Others V. Sifuni Mbwambo & 208 Others, Misc. Land Application No. 509 o f 2019, High Court (Land Division) at Dar es Salaam where the Court noted that; "It follows then, the application falls short o f condition 1 and 2 above. It is mandatory that all three conditions are met before a person is heard in the objection proceedings. Failure to meet one among the three criteria above renders the whole application incompetent. In our case\ the applicants are missing two o f the three mandatory conditions for their application to stand. In absence o f attachment as in this case, the applicants have nothing to object in the first place. Their application has not met the tests o f the objection proceedings as set out in Order XXI Rule 57 (1) and (2) and Rule 59 o f the Civil Procedure Code they cited as enabling provision". In the result, this Application is disallowed for reason that it has been brought prematurely. I therefore proceed to strike it out with no order as to costs. I order accordingly. this 15th November, 2023. ..v f f c - H.S. WtTMBWA JUDGE