mary charles mcharoadministratix of the estate of the late charles mcharo vs kibaha district council 2021 tzhclandd 6750 18 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.99 OF 2019 (Originating from Land Case No. 181 of 2018) MARY CHARLES MCHARO (Administratix of the Estate of the iate Charies Mcharo) APPLICANT VERSUS KIBAHA DISTRICT COUNCIL RESPONDENT RULING OPIYO 3. The applicant herein above filed this application seeking for a temporary injunction order against the respondent pending the determination of the main suit, under Order XXXVII Rule 2(1) and section 68(e) of the Civil Procedure Code, Cap 33 R.E 2019. It was supported by the affidavit of Mary Charles Mcharo, the applicant. The application followed the intentional acts of the respondent who is in the process of selling unilaterally the suit premises measuring 195,717 square meters, belonging to the estate of the late Charles Mcharo. The application proceeded by way of written submissions, Mr. Idd Ally Mrema, learned Advocate appeared for the applicant while Mr. Joseph Madatula appeared for the respondent. When the case was called for hearing, only the applicant presented her written submissions as scheduled. The respondent did not file. However, Mr. Madatula intimated that, they did not intend to object the appiication, irrespective of the fact that they had fiied counter affidavit. That is the reason they did not find the reason to fiie repiy submissions. Submitting in support of the appiication, iearned counsel for the applicant relied on the case Ally Rubenya Khalfan versus Rose Mashimba and Another, Misc. Land Application No. 512 of 2015, High Court of Tanzania, Land Division at Dar Es Salaam (unreported) quoting with approval the land mark case of Atilio vs. Mbowe (1969) MOD 284, in in which the three conditions prior to granting temporary injunction were outlined as follows: - The first condition is the existence of a prima facie case to be tried by the court of law. It was submitted by the iearned counsel for the applicant that, there is a prima facie case being established by the applicant who in fact is the lawful owner of the suit premises by virtue of her being an Administratrix of the estate of the late Charles Mcharo. The suit properties were under the ownership of the deceased since 1988. Basing on these facts, it is obvious that, the applicant has managed to establish the cause of action against the defendant, hence there is a prima fade case against her to be tried by this court. On the irreparable loss test, it was submitted by Mr. Mrema that, if the order of injunction against the respondent is not granted, the applicant will suffer irreparable loss as the respondent intends to sell the suit premises to the third party. If the sale of the suit plots is not stopped, the respondent would not in any way be able to compensate the applicant as the ownership of the premises will have shifted to the 3^" parties. Submitting on the balance of convenience principle, Mr. Mrema supporting his arguments by the case of Ally Rubenya Khalfan supra, maintained that, on the balance of convenience, the applicant stands to suffer much compared to the respondent if the suit premises are sold. It will take time, energy and cost to regain ownership or control of the suit premises. Therefore, an order of injunction is necessary to avoid such inconveniences. I have considered the submissions of the applicant through her respective Advocates. Also, I have gone through the affidavit as adopted by the parties through her submissions. The issue of determination is whether the application at hand has merit or not. It is important to note here that the respondent is not objecting the application. It is settled that in granting an order for injunction, the court ought to focus on the rules laid down in Atilio versus Mbowe supra, that the one seeking for the order has the duty to prove that she or he is within the rules stated in the above-mentioned case. In his submissions the counsel for the applicant insisted that, her client has met ail the requirements as far as the issue of injunction is concerned as stated, in Atilio versus Mbowe, supra and I agree with him. It is obvious that the applicant has triable issues in court regarding the ownership of the suit premises. Therefore, the court's interference in the protection of the subject matter of the main suit is necessary to avoid any future frustrations relating to the determination of the suit in question. On the whether the applicant will suffer irreparable loss if injunction is not granted. Being the Administratrix of the estate of the deceased Charles Mcharo, she is duty bound to protect the estate of the deceased from being interfered with in anyway such that affecting the rights of beneficiaries. If this application is not granted and the respondent decides to proceed with the sale, it is clear that, the beneficiaries and the estate will suffer irreparably. Above all, on the balance of convenience between the parties if injunction is withheld, I find it is the applicant who will experience more inconveniences than the respondent. The interest of the respondent is just to dispose the premises, the same can wait until the main case is fully determined and the orders accordingly issued. Under these circumstances, and for reasons given in the analysis herein above, I allow this application. The respondent is therefore restrained from disposing and or alienating the suit premises, pending the hearing and final determination of the main suit which is land case No. 181/2018. Ordered accordingly. !l-: A ijS M.P. OPIYO, T '! . JUDGE ^ '» 18/6/2021