20602 mohamed juma scanned

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 000020602 OF 2024 CASE REFERENCE NO. 202408221000020602 MOHAMED MZEE JUMA ....................................... ....................... APPLICANT VERSUS JACKSON KUNDASAI NJAU................................................. 1st RESPONDENT ERICA KUNDASAI NJAU (lawful attorney acting on behalf of Jackson Kundasai Njau).............. 2nd RESPONDENT RULING 05/11/2024 & 26/11/2024 GWAE, J The applicant, Mohamed Mzee Juma has brought this application under section 14 (1) of the Law of Limitation Act, Cap 89, Revised Edition, 2019 (LLA) praying for orders extending time to file an application to set aside ex- parte hearing order made on 17th April 2024 and for setting aside the said ex-parte hearing order. It is lucidly clear from the court record that, the respondents herein instituted a land case (Land Case No. 1942 of 2024 and not 2023 as wrongly indicated by the applicant in his chamber summons as well as in his affirmed i affidavit. Initially, the respondents sued a number of 13th defendants, the applicant being the 1st defendant. However, during mediation, the matter is said to have been successfully mediated against the 13th defendant, one Lucas Lazaro Mhuvile. After the order of the Court directing the hearing of the case to proceed ex-parte against the defendants (1st defendants to 12th defendants), the 1st defendant now applicant subsequently appeared on 9th July 2024. Eventually, he filed this application, which I have noted to have omitted the names of other defendants as respondents together with the respondent in this application. Before the Court, the applicant appeared in person, unrepresented whereas the Mr. Gerald Richard Riwa appeared for both respondents. Hearing proceed orally. The applicant had nothing to verbally to his affidavit and Mr. Riwa briefly argued that this application is not meritorious since the applicant was duly served but refused to receive the summon. He also stated that this application is omnibus. Hence, according to him, it is subject to being struck out. He bolstered his argument by citing the case of Genoneva vs. Abdullah, Misc. Land Application NO. 501 of 2022 and Simba vs. Said and another, Misc. Civil Application No. 391 of 2022 (both unreported decisions of this court). 2 On his rejoinder, the applicant stated that, he could easily be served through substituted service since is living in rural area. When I was to start composing the ruling, I came to note that, the applicant has not joined his co-defendants in the respondents' Land Case No. 1492,1 therefore entertained the parties to address me in this particular legally error. The applicant argued that, as layperson he did not know however he was of the view that, the applicant's co-defendants ought to have been joined to this application where the 1st respondent told the Court the applicant was to join his co-defendants as respondents notwithstanding his perception of their absence. Having been addressed by the parties, I find this application being incompetent since the applicant omitted the names of the defendants in the original proceedings that is Land Case No. 1492 of 2024, which he incorrectly cited as Land Case No. 1492 of 2023. It is trite law that, parties in a subsequent proceedings should reflect the names as those in the original or former proceedings notwithstanding that a litigant might not have a claim against him or her as the case herein. I fully endorse to the judicial jurisprudence in the case of Joseph Magombi vs. Tanzania National 3 Parks (TANAPA), (Civil Appeal 114 of 2016) [2021] TZCA 464 (14 September 2021) where it was inter alia stressed that legal position, ”.................think and agree with the Judges in the case of William Godfrey Urassa (supra) that the parties who featured in the initial proceedings should be the same parties featuring before the High Court as well as this Court. We further say, that unless a proper procedure has been followed to change or alter a name, no change of party's name should occur. Nothing convinces us that at any stage of the proceedings in the present situation a change of a party's name was entertained. The change of names in the present appeal is thus unjustified." In our instant application, the names of the defendants (from 2nd defendant to 12th defendants) in the initial proceedings in Land Case No. 1492 of 2024 have been omitted without any order of the court. On 9th July 2024, the order of the Court was to the effect that, the hearing of the respondents' case could proceed ex-parte against the 1st to 12th defendants except the 13th defendant who was represented by Mr. Gefrey Mushumbuzi, the learned advocate and whose fate was determined successfully through mediation before Bahati, J. That, being the legal position and being guided 4 by the above cited case, this application is incompetent, which is to bear the usual consequences. For the stated reason namely, misjoinder of the parties to be more precious who are in the initial proceedings, the applicants application is struck out. As the issues of misjoinder was raised by the court suo moto, each party shall bear his or her own costs. It is so ordered. DATED at DAR ES SALAAM this 26th November 2024 5