Johnsen ruling scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 2812 OF 2025

BETWEEN JOHNSEN LEONARD MAHURURU............................................. APPLICANT

VERSUS PERMANENT SECRETARY, MINISTRY OF LANDS HOUSING AND HUMAN SETLLEMENT DEVELOPMENT....... 1st RESPONDENT COMMISIONER FOR LANDS........................................................................ 2ndRESPONDENT KINONDONI MUNICIPAL COUNCIL............................................................ 3rdRESPONDENT THE ATTORNEY GENERAL........................................................................... 4thRESPONDENT NAOMI RAYMOND KWAYU( a.k.a FAINESS DAWSON KIWIA)........................................................................................5thRESPONDENT

RULING 26/02/2025& 28/02/2025 A. MSAFIRI, J, The applicant has filed this Application under the certificate of urgency seeking for the court orders that the court be pleased to issue an injunction prohibiting the 5th respondent from entering into Plot No. 484 (2196) Block H Mbezi Medium Density, Kinondoni, Dar es Salaam which is now held under Certificate of Title No. DSMT1057518 in the names of Fainess Dawson Kiwia. The plaintiff also prays that this court issue a restraint order to the 1st,2nd,3rd and 4th respondents from accepting any i documents and registering any transaction for the disposition of the suit property pending the hearing and determination of the Land Case No. 32646 of 2024 which is filed at this court. The Application was supported by an affidavit of Johnsen Leonard Mahururu, the applicant. The 5th respondent filed a counter affidavit to contest the application and it was sworn by Fainess Dawson Kiwia who is the 5th respondent. The 1st- 4th respondents did not file a counter affidavit and the counsel representing them one Ms. Catherine Kiiza informed the court that they do not contest the application. During the hearing which was oral, the applicant was represented by Mr. Barnabas Lugua, learned advocate, while the 1st - 4th respondents were represented by Ms Catherine Kiiza, State Attorney. The 5th respondent never entered appearance but she has filed her

counter affidavit contesting the application. After satisfaction that the 5th respondent is aware of this application, the court proceed with the hearing with the counsel for the applicant addressing the court on the application. Mr Lugua submitted that the applicant and the 5th respondent are vying for the ownership of Plot No 484 (Plot No 2196 Block H Mbezi Beach) Kinondoni Municipality. That the applicant bought the said land from one Juma Rajab Kapungu who is not a party to this application but he is the 2 7th defendant to the main suit. Mr Lugua referred to paragraph 2,3 4 of the affidavit in support of application. He submitted further that, before selling the suit property, there was a dispute between the 5th respondent and the said Juma Rajab Kapungu which went on to be determined before this court by Hon. Maghimbi,J in Land Case No 115 of 2020 whereby the matter was dismissed and it was in favour of Rajab Juma Kapungu as elaborated at paragraph 4 of the affidavit. The counsel said that, after the decision of this court in Land Case No. 115 of 2020, Rajab Juma Kapungu sold the suit land to the applicant. That, while the applicant was developing the land, the 5th respondent started following the matter up to the land authorities and the Ministry for Land demolished the development done by the applicant. That the 5th respondent has now erected a wall surrounding the

disputed land having been granted the said land by the Ministry for Lands. Mr Lugua submitted that by this application, the applicant prays to this court to issue an order restraining the 5th respondent from disposing and entering into the said land pending the hearing of the main suit, W | L 3 He averred that this application has merit and the main suit has merit. That if any disposition of the disputed land will take effect, the applicant will be the one to suffer and the purpose of the suit will be defeated. He added that on balance of convenience, it is the applicant who will suffer more than the respondents. He prayed that the application be granted. It is the cardinal principle set in the famous case of Attilio vs. Mbowe (1969) TLR 284 which has also been reiterated and elaborated in the plethora of cases that for the court to exercise its discretion and grant the interim injunction sought, the applicant has to fulfill/ meet cumulatively, three mandatory conditions. The three conditions are briefly; first the existence of prima facie case, second, the proof of imminent irreparable loss, incapable of being atoned for by way of damages, third, the balance of convenience in favour of the party who will suffer greater inconvenience in the event the sought injunction is not granted. In determination on whether the applicant have met the three conditions, I went through the

affidavit which supports the application. The applicant claims to have purchased the suit property from Juma Rajab Kapungu who was the owner of the suit property. He admits that before the sale, 4 the said Juma Rajab Kapungu was in ownership dispute over the suit property with the 5th respondent. That after purchase, he started development of the suit property but in February 2024, the building (residential house) was demolished following the orders of the Minister for Lands and other Land Officers. That, having demolished the residential building, the applicant was barred by the respondents from having access to the suit property. That following the demolition, the applicant decided to sue the respondents and he issued a 90 days' notice to the 1st to 4th respondents expressing that intention. The applicant said that while awaiting the expiry of the statutory period, the 5th respondent intends to sell the suit property while aware of the main suit pending at this court over ownership of the suit property. He said that in case this application is not granted, he stands to suffer grave loss as he will be in risk of losing the disputed property. In the counter affidavit deponed by the 5th respondent, she claims to be the legal owner of the suit property through the Letter of Offer and that the disputed land is registered in her names. She vehemently denied the claims of the

applicant and stated that the sought orders should not be granted as the same are abuse of the court process and the applicant will 5 not prove the main suit on merit as he is not the legal owner of the suit property. Having analysed the evidence by both rival parties, I am satisfied that the applicant has managed to establish all three conditions which are necessary in the applicant of this nature. On the first condition, I am satisfied that there is prima facie case whereby there is a land dispute between the applicant and the 5th respondent about the ownership of the suit property. In the main suit i.e Land Case No. 32646 of 2024, the applicant who is the plaintiff claims ownership of the suit property and claims that the 5th applicant who is the 6th defendant in the suit, forged documents i.e Letter of Offer and acquired illegally the Certificate of Title on the suit property. At the same time, the 5th respondent also claims to be the legal owner of the suit property and that it was legally granted to her and that it is registered in her names. By this, I find that there is a serious issue of contest between the parties. On the second and third conditions, I also find that they have been met. Since the 5th respondent also claims the ownership of the suit property and it is registered in her name, then there is a threat of the said 5th respondent to dispose of the suit

property in whatsoever manner while the main dispute of ownership has yet to be determined by this court after­ 6 hearing all parties involved. I also find that the applicant is in position of suffering more than the respondents, for the reason that the 5th respondent currently held the Title of ownership of the suit property so she stands to lose nothing if the temporary restrain order is issued. On the 1st -4th respondents, they have nothing to lose as they have no direct interest over the suit property. But if the application will not be granted, the applicant will be the one to suffer as his claimed right have not been heard and determined. For those reasons, I grant the application as all conditions have been met. Costs shall follow the events. A. MSAFIRI

JUDGE 28/02/2025 7