malik juma kirendemo vs kinondoni municipal council another 2023 tzhclandd 17060 24 october 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 279 OF 2023 MALIK JUMA KIRENDEMO........................................... PLAINTIFF

VERSUS KINONDONI MUNICIPAL COUNCIL.................... 1st DEFENDANT THE ATTORNEY GENERAL...................................2nd DEFENDANT

RULING Date of last Order: 03/10/2023 Date of Ruling: 24/10/2023 A, MSAFIRI, J. The plaintiff in this case one Malik Juma Kirendemo have instituted this suit jointly and together against the defendants claiming for declaration order that the refusal by the 1st defendant to issue a building permit to the plaintiff is unlawful, for an order to compel the 1st defendant to issue a building permit to the plaintiff, for an order compelling the 1st defendant to pay general damages to the plaintiff, for an order declaring that the plaintiff is entitled to be paid Tshs. 300,000/= per month from May 2023 as loss of earnings from leasing the frames, general damages i as this Honourable Court may deem fit to grant, costs of the suit and any other orders. The defendants filed their joint written statement of defence and with it, filed a Notice of Preliminary objection to the effect that; 1. The suit is unmaintainable in law as it sought to compel the 1st defendant (Government Body), to exercise an administrative action through an ordinary Court contrary to Section 17(1) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 R.E 2019] They prayed for the Court to strike out the suit with costs. It is a settled law that once a preliminary objection is raised, the Court is duty bound to hear and determine it first before hearing the case on merit. Hence, the hearing of

the preliminary objection was set. And on 24/10/2023, the preliminary objection was due to be heard orally. The plaintiff was represented by Ms. Stella Simkoko, learned advocate while the defendants had representation of Mr. Boaz Msoffe, learned State Attorney. However, before the hearing kicked off, Ms. Simkoko, counsel for the plaintiff addressed the Court that the plaintiff is conceding to the 2 raised preliminary objection, and admit that indeed, there are prayers in the plaint which need to be attended administratively. She therefore prayed that the suit be struck out with no order as to the costs. Mr. Msoffe, for the defendants had no objection on the plaintiff's prayers that the suit be dismissed with costs. Having heard the parties' submissions through their counsels, it is my view that by conceding to the preliminary objection, the plaintiff admits that this suit is incompetent before the Court. The remedy for the incompetent suit is to be struck out. I proceed to struck out this suit with no order as to the costs. 3