KILEMPU RuLing 2025 Klemp Objection

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI MISCELLANEOUS LAND APPLICATION NO.4206 OF 2025 (Arising from Land Case No 19178 of 2024.) KILEMPU KINOKA LAIZER……………………………………………. APPLICANT Versus OLORUBARE NGINYU…….…….………………...…………………...RESPONDENT

RULING 27th March& 02nd April 2025 Kahyoza,J.: Kilempu Kinoka Laizer (the applicant) filed an application to this Court seeking for order to maintain status quo pending the determination of the main suit. Before hearing the application, Olurubare Nginyu, the respondent in counter affidavit raised two points of preliminary objection. The preliminary objection reads that- 1. the allegation of trespass on 1000 Acres of land which fall under the Law of Tort alleged to be committed on 05.03.2017 is time barred in terms of item 6 of the schedule Part 1, of the Law of Limitation Act [ Cap 89 R.E 2019].

2. In terms of the Ruling of this court dated 22nd day of November 2024, in Land case No.19178 of 2024, this court had no 1 jurisdiction on matter of trespass (tortious Act) which is time barred. During the hearing both parties enjoyed the service of the learned counsel, where Mr. Lengai Loita assisted by Mr Yoshua Mambo represented the applicant. And respondent was represented by Mr. Median Mwale advocate. Mr Mwale, submitted to the effect that, this Court is not competent to entertain the application as it lacks jurisdiction since the claim of trespass is time barred. He argued that, the trespass is tortious act and the time limit for suing provided under Law of Limitation is three years. He argued that the cause of action arose on 05.03.2017 and the suit to this court was filed in 2024. Thus, three years have lapses from when the cause of action arose. Section 6 of the Law Limitation Act [Cap 89 R.E 2019] provides the time limit to sue for trespass to land which is a tortious act to be three years. He cited the case of Maitira Wasinge v Joseph Samwel and 4 Others, Civil Case No. 16/2023 CAT (unreported) to support his contention. In second ground of preliminary objection, Mr Mwale submitted that, according to the ruling, which this court delivered in Olorubare Nginyu vs Kilempu Kinoka Laizer (Miscellaneous Land Application No.16312 of 2 2024) [2024]TZHC 9753(22 November

2024), the applicant’s claim is trespass which claim is time barred then this court has no jurisdictions. He prayed the Court to sustain the objection with cost. Mr. Mwale raised another point of objection that the Court has no pecuniary jurisdiction to try the case as the claim was Tzs. 70 million the claim which may be tried by subordinate courts. He argued that, the pecuniary jurisdiction of this court is above Tzs. 300 million for immovable asset. He cited the case of Abillah Rashid Sadi and another v Kibaha District Council and another, (Land Case No. 150/ 2023) [2023] TZHC Land D16855(1September 2023) and the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EACA 696. In reply, Mr Loita, submitted that, the points of objection were irrelevant to this application. He argued that the application pending before the court was for interim order. He contended that the objection ought to have been raised in the main case. Mr Loita submitted that, the application is not time barred, since the claim is not a tortious act. He argued that, since the court allowed them to 3 file an application and they filed on time, then the matter cannot be time barred. On second preliminary objection, he argued that the objection was a not a pure point of law since it required evidence to prove it. To support his contention, he cited the case of Sharifa Twahib Msaala

v Thomas Mollel and 3 Others Civ. Appeal No. 67/2011 (CAT unreported) at page six of the judgment, which referred to the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ldt (supra). The issue of time barred or trespass cannot be determined without going to the main suit to establish what the respondent’s advocate has submitted. On the issue of jurisdiction, Mr Loita submitted that, the application does not fall under item 6, Part I of the Schedule to Law of Limitation Act, even the main suit does not fall under such categories. He cited the case of Alliance One Tobacco Tanzania limited and another v. Mwajuma Hamis (as the administratrix of the Estate of Philemoni R. Kilenyi) and another Misc. Civil Application No. 803/2008 HC at Dar es salaam, the court stated that, the preliminary objection which delay the adjudicating the matter should not be considered. 4 As to the issue on whether this court has pecuniary jurisdiction, Mr. Loita submitted that the court has jurisdiction as stated in Paragraph 17 of the plaint the value of the disputed land is Tzs. 810,000,000.00 (Eight hundreds and ten Million). Mr Loita, submitted that, the matter before this court is not a tortious act. The case cited by the respondent’s counsel, Maitira Wasinge v Joseph Samwel and 4 Others, (supra) is different from this case. The case cited was pure and simple tortious, whist in

the matter at hand is pure land matter. He prayed the objection to be overruled. After the submissions on the preliminary objection, this court invited the parties to submit on the main application. I will as practice demands determine the preliminary objection. If I uphold the preliminary objection, I will not proceed to consider the merit of the application and if the contrary happens, I will consider the merit of the application. Does the Court have pecuniary jurisdiction? I opted to determine first the issue of pecuniary jurisdiction. The respondent’s advocate submitted that this court has no jurisdiction as the amount claimed was Tzs. 70 million which was within the pecuniary jurisdiction of the subordinate courts. The applicant’s advocate submitted 5 that the suit land claimed has value of 810,000,000/= as stated in the plaint. I will not waste time on the objection two reasons: one, before this Court is an application for temporary injunction seeking to maintain the status quo, thus, the issue whether this court has pecuniary jurisdiction can not arise. The Court at this stage is called upon to determine the issue whether the application has disclosed prima facie case for this court to grant interim orders. Whether the court has pecuniary jurisdiction that issue must be raised in the main suit. Two, even if the respondent is justified to raise the issue of

pecuniary jurisdiction at this stage, the issue is misconceived as one of the issues to be determined is land ownership the value of which is estimated at Tzs. 810,000,000.00. Since the value of the matter is estimated at Tzs. 810,000,000.00, then, this court has jurisdiction. In addition, the law is clear the High Court has unlimited jurisdiction, it may determine the suit even of amount falling under the jurisdiction of subordinate courts. The High Court has unlimited jurisdiction. I am aware of the position of the law which the Court of Appeal propounded which interpreting section 13 of the CPC in M/s Tanzania - China Friendship vs Our Lady of The Usambara Sisters (Civil Appeal 84 of 2002) [2005] TZCA 104 (19 October 2005), held that the 6 High Court has no pecuniary jurisdiction to try a case where the amount claimed is within the pecuniary jurisdiction of the High Court. That position has since changed following the amendment of section 13 of the CPC. Section 13 of the CPC reads that- "13. Every suit shall be instituted in the court of the lowest grade competent to try it and, for the purpose of this section a court of the Resident Magistrate and District Court shall be deem ed to be courts of the same grade. Provided that the provision of this section shall not be construed to oust a general jurisdiction of the High Court". The Court of Appeal had an opportunity to

construe the current section 13 of the CPC in General Manager African Barrick Gold Mine Ltd. vs Chacha Kiguha and 5 Others (Civil Appeal No. 99 of 2019) [2024] TZCA 469 (14 June 2024). It observed that- “We wish to state also that, following the amendment of s. 13 of the CPC by Act No. 4 of 2016, even where a suit which would ordinarily be instituted in a Resident Magistrate's Court or District Court is erroneously entertained by the High Court, the error would not vitiate the proceedings. After amendment, Section 13 of the CPC reads as follows: "13. Every suit shall be instituted in the court of the lowest grade competent to try 7 it and, for the purpose of this section a court of the Resident Magistrate and District Court shall be deem ed to be courts of the same grade. Provided that the provision of this section shall not be construed to oust a general jurisdiction of the High Court". In the case of Benitho Thadei Chengula v. Abdulahi Mohamed Ismail, Civil Appeal No. 183 of 2020 (unreported) in which the issue of jurisdiction of the High Court based on a similar point was raised, we observed that: " ...it is our considered view that the error of instituting it in the High Court instead of the District Court did not occasion a miscarriage of justice as it did not prejudice any of the parties. Besides, since section 13 of the CPC was amended two years later by Act of No. 4 of

2016 by adding a proviso whose effect is to render the present objection regarding jurisdiction to be redundant, we shall not uphold the [objection]". (Emphasis added) I am therefore of the firm view that, the objection that this court has no pecuniary jurisdiction is meritless. I overrule the objection. Is this application not maintainable because the main suit is time barred? The respondent’s argument is that basing on the ruling of this court the matter for consideration is trespass, which is tortious act. He added that 8 the time limit for a tortious action is three years. He contended vehemently that suit was filed after the expiry of three years, hence it is time barred. He contended that since the application stems from the time barred. Suit cannot be entertained. The applicant’s reply was that the application was filed within time specified by the Court, hence, the same is not time barred. He argued further that the main suit is not time barred. There is no doubt that time limit for suing for claim based on tortious act is three years. Trespass to land is tortious act and thus, as submitted time limit to sue is three years. I agree with the holding in Obeto Werema Joseph @ Obeto Joseph Werema v CATA Mining Limited, (Land Case No. 20 of 2020) [2020] TZHC 2469(4 August 2020), where this Court held that; "Thus, I find that the relief sought in the case at hand

is compensation arising from the tort of trespass to land. This is not a suit for recovery of land whose time limitation is 12 years from the date of cause of action. Pursuant to item 6, Part I of the Schedule to Law of Limitation Act, the time to institute suit is founded on tort is three years from the date of cause of action. Even if it is taken that the suit is based compensation, item 1, Part I of the Schedule to Law of Limitation Act provides that the time 9 limitation for "compensation for doing or for omitting to do an act alleged to be in pursuance of any written law" is one year.” Also, this Court in Jackson Rwehumbiza and four others vs. Permanent Secretary Ministry of Natural Resources and Tourism and two others, (Land Case No. 13 of 2023) [2023] TZHC Land 15733(23 March 2023), took the same position when it held that- "...I find and hold that the plaintiff's suit on the tort of trespass to land is time-barred; the Plaintiffs ought to have filed the same within three (3) years on accrual of the cause of action." The matter pending for determination is an application seeking for an interim order to restrain the defendants from interfering with the suit land. Thus, the decision in this matter will not have any impact on the main suit. The objection is misplaced. In addition, it may be that there is more than one cause of actions in the plaint. The cause of action

based on trespass may be time barred but other claims or cause of actions may not have been overtaken by time. I wish to refer to the decision of the Court of Appeal in Lausa Athuman Salum vs. Attorney General [2011] TLR 74 where the it stated on how the Court should consider the issue of time limitation. It stated- 10 "We think that in approaching the question of limitation, a court is bound to consider two principles. First, it has to look at the whole of the suit as framed, including the reliefs sought. This is because the suit could combine more than one cause of action and/or claim. his is because, the suit could combine more than one cause of action and/or claim; and: “ .....the combination of several claims would not deprive each claim of its own specific character and description and accordingly, a suit seeking two or more distinct and independent remedies may be " barred as to one of the remedies and not barred as to the other. When an injured party has a right to either of two remedies, the one he chooses is not barred by limitation because the other is." (KJ. RUSTOMJI. THE LAW OF LIMITATION AND ADVERSE POSSESSION: 3rd ed. p.

30) We accept this statement of the law as correct. It means that, where, in a suit, there are more than one claim based on different causes of action, and one or some are found to be barred by limitation, but others are not, it is wrong to dismiss the whole suit as time barred.” (Emphasis added) It is not escape any one’s mind that a claim for trespass may go hand in hand with the dispute over ownership. In such a situation, there would be two causes of action depending on the reliefs sought to, as well as the 11 written statement of defence. Paragraph 4, 6, and 7 and 12 of plaint states clearly that the applicant’s claim is for ownership of land against the respondent. The respondent deposed that the applicant had no land for him trespass onto. He contested against the applicant’s allegation of ownership of that land. One of the applicant’s or plaintiff’s relief claimed is a declaration that he is rightful owner of the suit land. This Court in Osingo Construction Co. Ltd vs. Aloyce John Mwasuka, (Land Case No. 232 of 2022)[2022]TZHC, Land D 12702(15 December 2022) Page 8, held that; ”Issue of trespass on the land in dispute cannot be determined before the issue of ownership is resolved. In order to establish trespass over the land, ownership of that land must be established first." Given the above position, this court may not determine the issue of trespass but deal with the

issue of ownership which there is no allegation that it is time barred. In addition, the respondent’s objection is based on the Court’s ruling and not the plaint and the WSD. With due respect to the respondent’s advocate, I do not think it was proper to base the objection on the Ruling of the Court instead of the pleadings. 12 Finally, I find the preliminary objection without merit and proceed to dismiss it. Having dismissed the preliminary objection, it is time to consider the merit or demerit of the application for maintaining the status quo. The application is supported by the applicant’s affidavit and the respondent filed the counter affidavit to oppose the application. During the hearing of the application both parties prayed to adopt their respective affidavits and submitted in support or in opposition of the application. The applicant’s advocate submitted that the reason for seeking the interim, is there are triable issue before this court pending determination; Two, that, the respondent and his agent are forcefully entering into the applicant land cutting trees and threating the applicant with gun when he approaches the land in dispute. Following such action, the applicant complained to the OC CID of Simanjiro. He invited the court to the letter annexed to his affidavit as “annexture D’’. Three, that the applicant stands to suffer irreparable if the order is not granted

as the respondent destroy the ecosystem of that land by cutting trees, which he cannot be compensated. He contended that the applicant stands to suffer greater hardship and mischief if the injunction is not granted than the respondent if 13 the order is granted. He cited the case of Attilio vs Mbowe (1969) HCD 284 and the case of General Tyre East Africa Ltd vs HSBC Bank Plc [2006] TLR 60 to support is contention. In his reply, Mr Mwale Advocate, vehemently opposed the application. He submitted that there was no evidence, save that of the applicant, to prove that the respondent entered the disputed land. He argued that the applicant had no land and that he was a trespasser. To support his contention, he referred to a letter from the DC to VEO of Landanai village dated 14. Jan. 2025, to the extent that the applicant was a trespasser and that they should evict him. He insisted that the applicant has no land. The disputed land is the property of the village. The applicant is seeking to bar villagers to use the village land without the village council being a party to this case. He asserted that the government will not seatback and witness its land being seized by a court order. He added that the applicant alleged the respondent sent Jackson Yamat to threaten and referred to a letter issued by the OC CID. Jackson Yamat was not part of this case and before this court was a civil

case and not a criminal case, thus the unsubstantiated allegations were baseless. 14 The respondent’s advocate was emphatic that if this court issues an injunction, the government will become bitter, as its land will be taken away by a court order. He being senior court officer, having been admitted to the bar in 1997, will be condemned for not assisting the court. If the village will be served with the order, there will be a lot of noise. He concluded that efforts to evict the applicant from the suit land had commenced. It is trite law that a party seeking an order for a temporary injunction must meet the conditions laid down in a litany of cases, one of such cases is Atilio v. Mbowe (supra). That case sets out preconditions which a litigant has to meet before the court exercises its discretion to grant an application namely; one, the existence of serious question to be tried on the facts alleged with the probability of success in the suit; Two, demonstration that the applicant stands to suffer irreparable loss requiring the court’s intervention before the applicant’s legal right is established; and three, proof of greater hardship and mischief suffered by the applicant if the injunction is not granted than the respondent will suffer if the order is granted. It is also the law that the conditions set out must all be met and so meeting one or two of the conditions will not be

sufficient for the purpose 15 of the court exercising its discretion to grant an injunction or an interim order. Has the applicant established a prima facie case? It is settled as held in Suryakant D Ramji vs Saving and Finance Limited and Others (2000) TLR 121, that for an interim order to be granted there must be triable issue(s) between the parties. Indisputably there is a serious issue of ownership between the applicant and the respondent. The applicant alleged to owner 1000 acres of land and the respondent disputes that allegation contending that the applicant has no land as alleged. Thus, on the face of the pleadings, the affidavit and counter affidavit together with the submissions, there are triable issues. I find the first element established. Will the applicant suffer irreparable loss? It is settled that Courts will only grant injunctions if there is evidence that there will be irreparable loss which cannot be adequately compensated by award of general damages [See: American Cynamid Co. V. Ethicon Ltd [1975] 1 All ER 504 at p.509 Per Lord Diplock and various cases in Tanzania including Hotel Tilapia Ltd v. Tanzania Revenue Authority, 16 Commercial Case No. 2 of 2000 (unreported)]. Lord Diplock stated in American Cynamid Co.‘s case the object of the temporary injunction is to protect the plaintiff against injury by violation of his right for which he could not

adequately be compensated in damages, recoverable in the action if the uncertainty were resolved in his favour on the trial. The applicant deponed and his advocate submitted that the suit land in danger of being wasted, vegetation and ecosystem within the land is likely to be destroyed by the activities of the respondent of cutting trees, bringing to the land huge number of cattle. The respondent made a general denial in his counter affidavit and added that the applicant has no piece of land which he alleged to own. The respondent’s advocate submitted that there was no evidence that his client had entered the applicant’s land except the applicant himself. He contended that the respondent had received a letter from the DC to VEO of Landanai village dated 14. Jan. 2025 to the extent that the applicant, Kilempu, had trespassed to Landanai village land. The DC directed Kilempu to be removed. The DC gave a copy to the DC of Simanjiro, the Division officer of Naberera, and Kilempu Laizer. The applicant has no land. The disputed land is the property of the village. The applicant is seeking to bar the use of the village 17 land without the village being a party to this case. The disputed land is the village land. He added that the government cannot take away the land from a person. The applicant has not complained against the letter from the DC. He threatened that if this Court issues

the interim order, the government will act as the government cannot witness its land being taken away by the court order. The respondent’s advocate did not wish to depict how his client stands to suffer or how the applicant will not incur irrepealable loss, if an interim order will be issued. He chose to threaten the court not to issue the order as it will cause untold chaos and move the government to take action as it cannot accept to see its land snatched by a court order. The Court was dumbfounded to hear the senior advocate submitting that an interim order gives right to a party to the suit. The purpose of an interim order is not to declare or determine parties’ right but as held by Lord Diplock in American Cynamid Co.‘s case the object is to protect the plaintiff against injury by violation of his right for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour on the trial. 18 It is unfortunate, that the respondent’s advocate submitted that an interim order would snatch the disputed land from whoever owns it and give ownership to the applicant. It is further very regrettable for the senior advocate to threaten this court that should it issue an interim order chaos will arise as the villagers and the government will not acquiesce to witness its land taken by court order. I am not able to tell why the

respondent chose to misconstrue the purpose of interim order. Should this court take it that the learned senior advocate does not know the purpose of an interim order? The answer is that the advocate knows the purpose of the interim order, but he and his client is all out to see that is loses the battle in the court he will advice his client and the government to resort to mob justice and cause chaos. Should this happen, the respondent’s advocate be an instigator. The respondent’s advocate should not be spared from criminal action. The respondent’s advocate is not the spokesman of the government. How does he know that the interim order will cause chaos from the village and the government. Even if he has six senses, he ought to advise the government and the villagers if they think they have interest in the matter pending in court to seek judicial remedy instead of advising them to take the law in their hands by causing havoc. 19 Back to the issue whether the applicant stands to suffer irreparable loss and to endure greater hardship if the order is granted than what the respondent’s stands to suffer if the order is granted. It is obvious that the respondent does not stand to suffer any loss as he deposed and his advocate submitted that, the disputed land belongs to the villagers of Landanai or the government. The applicant deposed that he stands to suffer as trees are cut down,

vegetation and ecosystem within the land is likely to be destroyed. He deponed also that the respondent forcefully entered into the suit land, grazed and destroyed beans and trees. For that reason, the applicant will suffer greater mischief than the respondent who does not stand to suffer anything. The next question is whether the applicant will suffer irreparable loss. The Court of Appeal in Abdi Ally Salelhe vs Asac Care Unit Limited and Others (Civil Revision No.3 of 2012) [2013] TZCA 2340 (12 July 2013),Tanzlii, held that- “Once the court finds that there is a prima facie case, it should then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned for by way of damages. There, the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way 20 be changed for the worse; that he will suffer damage as a consequence of the plaintiff's action or omission, provided that the threatened damage is serious, not trivial or minor, illusory, insignificant, or technical only. The risk must be in respect of a future damage.” The applicant deponed and his advocate submitted that, by cutting trees and grazing huge number of cattle to the disputed land, the respondent was destroying the ecosystem. He deposed that such a loss would not be compensated. Ecosystem is defined as a biological

community of interacting organisms and their physical environment. There is no dispute that the value destroyed trees would be compensated but the ecosystem caused by cutting down tree and destruction of vegetation cannot be adequately compensated by award of general damages. The applicant alleged complained to the OC CID that he was threatened using a gun. As submitted by the respondent’s advocate, threatening to kill or injure a person with a gun is criminal offence. I do not think it would be ground to grant an order to interim order, but it may be sufficient evidence that there is need for this Court to interfere to maintain the status quo and prevent breach of peace. 21 Finally, I find that the application is meritorious and grant the interim order to restrain the respondent, his workers, agent or any other person acting under the respondent’s instructions from grazing cattle, destroying or dealing in any other way and interfering with land in dispute known as 1000 acres located at Landanai village, Simanjiro district pending hearing and determination of Land case number 5948 of 2024. No order as to costs. Dated at Babati, this 2nd day of April 2025. Court: Ruling delivered in the virtual presence of Mr. Yushua Mambo for the applicant and Mr. George Kivuyo holding Mr. Mwale advocate’s brief for the respondent and the absence of the parties in person. B/C Mr. Shadrack present. J.R.KAHYOZA,

JUDGE 2.4.2025 22