20151113 TZHC Arusha

1' I ' IN THE HIGH COURT OF TANZANIA AT ARUSHA I MISCELANEOUS CIVIL APPLICATION NO 186 OF 2015 . ' I · ST OMARI HASSAN SHIFAO ........................... ~ .. 1 APPLICANT ' I I . ND REHEMA HASSAN SHIFAO ... .,. ................... ~ .. 2 APPLICANT HUSSEIN HASSAN SHIFAO ... l.............;......... I 3RD APPLICANT ADAM HASSAN SHIFAO ....... .,~ ...................•... 4TH APPLICANT IBRAHIM HASSAN SHIFAO ... l................... ~··· 5TH APPLICANT VERSUS I I HUSNA HASSAN SHIFAO ..... .,.•.......................... i RESPONDENT RULING MWAIMU, l. I This is an application for an interim injunction brought under ' section 68 (c) and (e), Order XXXVII rule 2 (1) pf the Civil Procedure Code Cap. 33 RE 2002 where the applicants seeks to restrain the respondent from effecting a tra~sfer over a right of occupancy with Certificate of Title No. 8542, Plot No. 24 Block 'E' Area 'F' within the Arusha City under the name of the late Fatuma Juma Shifao pending I I I 1 i' I ' I the hearing of Civil Case No. 35 of 2015. The application is supported by a joint affidavit of the five applicants. The interim injunction is sought on ground that the applicants who are the beneficiaries of the disputed property are not satisfied with its distribution and that they solely depend on it. They have discovered that the respondent who is the administrator of the estate of the late Fatuma Juma Shifao is said to be in the process of transferring it to a third party. To avoid jeopardy over their rights over the property, the applicants say that they have filed Civil Case No 35 of 2015 to contest for a serious issue on whether the respondent reasonably distributed the property and whether the distribution was justifiable. The applicants also feel that they would suffer loss if the interim injunction is not granted as in terms of annexture "A2" attached to the application they have established the fact that the respondent is in the process of transferring the property. Reference was made to the case of TA Kaare versus General Manager Mara Cooperative Union [1996] TLR 75 on the matter. In reply the respondent opposed the .application by filing a counter affidavit. According to the respondent,· the application has not met the test in the case of Atilio versus Mbowe [1969] HCD 284. Firstly, it was contended that there is no serious issue for determination by the Court. Secondly it was submitted that the matter 2 originated from Probate Cause No 25 of 1993. Then it was sent to the District Court for revision in Miscellaneous Civil Application No. 43 of 2014. In (PC) Civil Appeal No. 07 of 2015 the High Court blessed the distribution of the estate of the late Fatuma Juma Shifao and so far no other decision of the court has been made to establish that the distribution made by the respondent was improper. According to the counter affidavit, it has been said, an inventory showing how the distribution was made has been attached. It was also said that the respondent and the heirs, who were allocated the disputed property would suffer irreparable loss rather than the applicants who were allocated a house in Plot No. 16 Block "E" Area "F" Lindi Street within the Arusha City and Plot No. 14 "B" at Namanga Township within the Arusha Region. According to the respondent the application is tainted with ma/a fide because while the High Court confirmed the distribution of the deceased's estate in (PC) Civil Appeal No. 07 of 2015, the applicants could not challenge the decisiolil instead they came up with a new suit. In rejoinder the respondent submitted that the applicants were not parties to the suit in the primary court. I have considered both the affidavit and the counter affidavit by the parties and submissions by their respective counsel and found that although Mr. Koisenge for the applicants informed the Court that the applicant attached annexture "A2" to the affidavit showing that 3 F .J;I I • I I I' .?)~ , I t I i I the respondent is in the process of transferring the property to a third .. i. . I . party, I saw no such document at1ched thereto. rowever, even if that document exists and was not a~ached by mere/I inadvertence, the I , jQtended transfer could be compen~ated in monetary terms or by a " revocation of the transfer should it t~rn to be tha~ t~e house has been ,, ' illegally transferred. i' I In result the application for ~n interim ihjunction is refused. 1 Costs should follow event. It is so ordered. M.P.M. Nlwaimu I I 1, ' ,// n·' , i I I JUQGE !' I 13/11/2015 I I 4·