Dr

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 000019418 OF 2024 DOCTOR SEBASTIAN MATATA MKUYE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS JOEL JOSHUA KILAGAMBALAYE .............................. RESPONDENT / DEFENDANT KASANDA VILLAGE COUNCIL .............................. RESPONDENT / DEFENDANT KEWE VILLAGE COUNCIL .............................. RESPONDENT / DEFENDANT KAKONKO DISTRICT COUNCIL .............................. RESPONDENT / DEFENDANT THE ATTORNEY GENERAAL .............................. RESPONDENT / DEFENDANT

RULING P. R. KAHYOZA, J, Dr. Sebastian Matata Muyeka has instituted a civil suit against five defendats, namely, Joel Joshua Kilagambalaye, Kasanda Village Council, Kewe Village Council, Kakonko District Council and the Attornety General; the first to fifth defendants respectively. He is claiming against them for a number of reliefs as set out in the plaint. But before hearing of this case could take off, the defendants raised a number of preliminary objections on points of law. The first defendant has raised three points of preliminary objections, and they are reproduced here below: 1. That, the Plaintiff lacks locus stand to sue. 2. (ii)That, the case is barred by doctrine of Res judicata.

3. That, the High Court enjoys appellate jurisdiction for redress. On the other hand, the remaining defendants have also through the services of the Solicitor General, raised two points of preliminary objections which are to the following effect: 1. That, the Plaint is fatally defective for failure to give a full name, description and place of residence of the Plaintiff contrary to Order VII, Rule 1 (b) of the Civil Procedure Code [Cap 33 R.E 2019] 2. That, this suit is untenable in law for failure to sufficiently describe the disputed property and failure to disclose sufficient facts constituting the cause of action against the Defendants contrary to Order VII, Rule 3 and 1 (e) of the Civil Procedure Code [Cap 33 R.E 2019]. On 30th September when the matter came up for necessary orders, Mr. Masendeka Anania Ndayanse, counsel for the Plaintiff prayed that the preliminary objections be argued by way of written submissions. The prayer was Page. 1 granted and a schedule was accordingly fixed. All the defendants filed their respective submissions according to the schedule. On the other hand, counsel for the Plaintiff did not comply with the schedule fixed by the court. The learned counsel has attributed this failure to two reasons. One, that he was engaged in service of notices of hearing in relation to a matter that was before the Court of Appeal of Tanzania sitting at Shinyanga.

Unfortunately, this ground is not acceptable. Services of notices for hearing is in the realm of court process servers. The learned counsel is not one. Two, late service of the submissions by the second to fifth defendants. Mr. Ndayanse has annexed a document purportedly showing when he was served with the submissions. But this reason too is not acceptable. The document annexed to the submissions is a last page of his plaint. It shows that it was signed by him on 28th July, 2024. This was long even before the order for written submission was made. So, the document annexed to the submissions has got nothing to do with the written submissions. In all, the reasons advanced are not convincing and are unacceptable in the circumstances. This means Mr. Ndayanse must face the attendant consequences for failure to file written submissions. But that notwithstanding, I have opted to consider his belated submissions so that we can address the real issue at stake. As pointed out earlier, the first Defendant raised three points of preliminary objections. In his written submissions, Mr, Ndayanse stated that the points raised were based on matters of facts. He thus asked the court that they be dismissed. I think this is true for the first and third points. The second point however, is a pure point of law. The only reason why it cannot stand in this matter is the fact that it has fallen short

of the vital tests for the doctrine. Res judicata can only be pleaded if the matter involves the same parties as in the previous case, the same subject matter, and also that the previous case was determined to its finality by a competent court/tribunal. As it is this is not the case here. Land case No.14 of 2024 before the District Land and Housing Tribunal was not tried to its finality. It was withdrawn. As such the doctrine of res judicata does not apply to it. It is for these reasons that all the three points of preliminary objections raised by the first defendants are over ruled. As for the two points of preliminary objection raised by the rest of the defendants, Mr. Ndayanse has conceded to them. He has however prayed that he be allowed to amend the plaint instead of having it struck out. I have considered this prayer but I have declined to grant it. This is because, apart from the points raised by the defendants, the plaint is also suffering from one serious defect. It is generally unintelligible. There is no any amount of amendment that can vitalize or resuscitate it. In such circumstances, the remedy is not to amend, but to strike out the entire plaint. With that said and done, I hereby strike out plaint for the reasons stated. The plaintiff is at liberty to start afresh if he so wishes. The second, third, fourth and fifth defendants are awarded costs. It is so ordered. Page. 2 Dated at KIGOMA ZONE this 13th of November 2024. P. R. KAHYOZA, J

JUDGE OF THE HIGH COURT Page. 3