misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 10562 OF 2024 IKU BROWN KASEGE................................................................ APPLICANT

VERSUS JEAN LUC SABATO...................................................................RESPONDENT

RULING 27 &30/5/2024 GWAE, J The applicant IKU BROWN KASEGE has filed this application, praying for the following orders "(a) That, the mandatory Notice to the Respondents in detrmining prayer 1 (b) herein be dispensed with. 1 (b)That, this Honourable Court may be pleased to summon the Caveator/ Respondent herein to attend and show cause as to why such a Caveat should not be removed in respect of the land property known as Plot No. ID 253852, Ukonga area in liaia Municipality, Dar es Salaam and held under the Certificate of Title No. 49242 registered in the name of IKU BROWN KASEGE, the applicant herein. (c) Any other or further reliefs as this Court may deem fit to meetjustice of this case/ Application i (c) Costs of this Application be provided for by the respondents." This application has been preferred under section 78 (4) of the Land Registration Act, Cap 334, Revised Edition, Sections 68 (e) and 95 of the Civil Procedure Code, Cap 33, Revised Edition, 2019. The application has been taken at the instance of LEGAL CLINIC ADVOCATES and is supported by the affidavit of IKU BROWN KASEGE, the applicant herein. The brief background to this application according to the facts deponed in the applicants affidavit is that, the applicant is the registered owner of the suit landed property known as Plot No. ID 253852 located at Ukonga area in Ilala Municipality, Dar es Salaam Region,

held under the Certificate of Title of a Right of Occupancy No. 49242 by way of inheritance from his biological father one late BROWN NGWILULUPI who acquired the said property from the office of the then Minister for Lands, Settlements and Water. The applicant came to notice that, the respondent who was her former husband without justifiable cause entered a caveat in respect of the suit landed property. It is alleged that, their marriage did not go well and the applicant filed a Matrimonial Cause No. 48/2021 in the District 2 Court of Temeke at Temeke. In the said matter, the respondent did not claim ownership in his reply to the petition or by way of a counter claim and there was no order for division of acquired matrimonial assets issued by the District Court, as there was none. Aggrieved by the said decision, the respondent pursued further court proceedings in the High Court in vain and no appeal preferred to the Highest Court of the Land by the respondents to date. The court dispensed with who the requirement of notice to the respondent was dispensed with pursuant to section 78 (4) of the Land registration Act, Cap 33, Revised Edition, 2019 and taking into account the length of the pendency of the caveat in the Land Registry since. The matter proceeded ex-parte against him. o Hearing proceeded orally. Mr. Alex Balomi, the counsel for the applicant was very brief in his

submissions. He stated that, since the caveat has been pending in the Land Registry for a quiet long time, the application be granted. Having carefully gone through the affidavit in support of the application and submission by the counsel for the applicant, the issue for the court's determination is whether this application is meritorious. 3 It is perceptible that, the applicant has interest in the suit property as depicted in paragraph 2 of the affidavit in support of the application and the Title Deed attached as Annex A to the application as well as the letter of Registrar of Titles dated 11th October 2011. It is also apparent that, it is almost 11 years since the year 2011 when the respondent duly entered the caveat but to date nothing like an action taken against the applicant. Caveat functions as a sentinel, warning the court or any other authority not to issue any orders pertaining to the property prior to notice to the caveator. Hence, it protects an interest of the Caveator from being overlooked or disregarded. However, the same cannot be left in the land Registry indefinitely. The mere fact that, the caveator has a caveatable interest does not by itself mean that he or she had a reasonable cause to lodge a caveat. Thus, the courts are there to safeguard the interest of both parties. (See the decisions in Kuper & Kuper vs. West Construction Pyt Ltd (1990) 3WL 419 and

Hooke vs. Holland (1984) WAR 167. In the premises, I find this application is grantable. onsequently, the application is hereby granted. I thus proceeding ordering that, the caveat so entered by the respondent in respect of the property on Plot No. ID 253852, Ukonga area in Ilala Municipality, in the 4 Region an City of Dar es Salaam held under the Certificate of Title No. 49242 registered in the name of IKU BROWN KASEGE be removed as soon as practicable. No orders as to costs is made. It is so ordered 5