fraid fmbaraka another vs domina kagaruki another 2023 tzca 17597 5 september 2023

fraid fmbaraka another vs domina kagaruki another 2023 tzca 17597 5 september 2023

Restitution was properly ordered under section 89(1) CPC because the appellants and second respondent benefited from an erroneous decree that was reversed; the resurvey was not a precondition for restitution; compensation, mesne profits, and general damages were properly awarded based on evidence and affidavits; interest should run at 7% from date of judgment until payment in full.

Citation
fraid fmbaraka another vs domina kagaruki another 2023 tzca 17597 5 september 2023
Parties
Appellant: Farid F. Mbaraka; Appellant: Farida Ahmed Mbaraka; Respondent: Domina Kagaruki; Respondent: Elius A. Mwakalinga
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
5 September 2023
Procedural Posture
Civil Appeal / Judgment on Appeal and Cross Appeals
Outcome
Appeal and cross-appeals dismissed with variation on interest order; costs awarded as specified.
Legal Topics
Restitution, Compensation, Mesne Profits, General Damages, Interest on Judgment Debt, Execution of Judgments, Ownership of Land, Demolition and Eviction
Source Language
English
Civil Procedure Land Law Restitution Compensation Mesne Profits General Damages Interest on Judgment Debt Execution of Judgments +2 more

Case Brief

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Parties

Farid F. Mbaraka

Appellant

Farida Ahmed Mbaraka

Appellant

Domina Kagaruki

Respondent

Elius A. Mwakalinga

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal and Cross Appeals

Legal Issues

  1. 1 Whether restitution and compensation could be ordered prior to resurvey and subdivision of the disputed plots as per prior Court of Appeal order
  2. 2 Whether the High Court erred in awarding compensation, mesne profits, and general damages without sufficient proof
  3. 3 Whether the High Court erred in making orders regarding demolition of a wall and awarding interest

Ratio Decidendi

Restitution was properly ordered under section 89(1) CPC because the appellants and second respondent benefited from an erroneous decree that was reversed; the resurvey was not a precondition for restitution; compensation, mesne profits, and general damages were properly awarded based on evidence and affidavits; interest should run at 7% from date of judgment until payment in full.

Court Disposition

Appeal and cross-appeals dismissed with variation on interest order; costs awarded as specified.

Orders

  • Restitution and compensation to respondent upheld.
  • Interest at 7% per annum on decretal sum from date of judgment until full payment.