osward pius kitali oscar luis fabian 11 others vs tanzania electric supply co ltd 2022 tzhclandd 12684 13 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 16 OF 2022 OSWARD PIUS KITALI & OSCAR LUIS FABIAN & 11 OTHERS......................................... APPLICANTS VERSUS TANZANIA ELECTRIC SUPPLY CO. LTD................................RESPONDENT RULING Date oflast 0rder:25/ll/2022 Date of Ruting: 13/12/2022 K, D, MHINA, J, By a chamber summons taken under Order 1 Rule 8 (1) of the Civil Procedure Code [ Cap. 33 R. E. 2019] ("the CPC"), the applicants instituted this application against the respondent, Tanzania Electric Supply Company Limited. The applicant, inter-alia, is seeking the following orders: - i. That this Court be pleased to grant leave to Applicants to sue for andon behalf of 11 others; ii. Costs of this application be provided. iii. Any other order or reliefas it deems fit andjust. The application is supported by the affidavit disposed of by Osward Pius Kitali and Oscar Luis Fabian, the applicants. No affidavit in reply' i was filed to contest it, and on 3 November 2022, Mr. Steven Urassa, Advocate for the respondent, informed this court they opted not to object to the application. However, it is a practice of the Court that the mere fact that the respondents have not contested an application does not give an applicant the right to be granted the orders being sought, see M.S Business Ltd v. Amos David Kasanda and two others, Civil Application No. 66 of 2014, CAT, (unreported). The applicants were represented by Ms. Rosemary Kirigiti, a learned advocate who filed the written submission to support the application. Having canvassing through the uncontested chamber summons, affidavit, and written submission in support of the application, I find that the two applicants prayed to sue on behalf of themselves and 11 others. The reason advanced was that all applicants have the same interest in the intended suit. Therefore, since it is a rule of law and practice where numerous persons have the same interest, one or two may file an application for leave to sue for and on behalf of others. 2 That common interest is the dispute with the respondent regarding the allegations averred in paragraphs 2, 4, and 5 of the affidavit that the respondent served the 13 applicants with notices to demolish their houses located at Gulukakwalala and gave vacant possession to the respondent to undertake the project of building electricity facility of passing over and supplying electricity of about 400 kilovolts from Somanga in Lindi Region to Kinyerezi Dar es salaam, without the payment of adequate and fair compensation. Having gone through the reasons advanced by the counsel for the applicants, I agree with her and find merits in this uncontested application and allow the applicants to institute a representative suit after being satisfied that the conditions stipulated under Order 1 Rule 8(1) of the CPC are satisfied. The order provides as follows; l'8.-(l) Where there are numerous person having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, in such suit, on behaif of or for the benefit of ali persons so interested; but the court shall in such case give, at the plaintiffs expense, notice of the institution ofthe suit to allsuch persons either bypersonal 3 service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct". Consequently, in terms of the same order of the CPC, I order the following; i. The applicants, Osward Pius Kitali and Oscar Luis Fabian, shall institute the representative suit on behalf of themselves and 11 others ii. Notice of the institution of the suit to all interest parties shall be published vide widely circulated newspapers. In one Swahili newspaper and one English newspaper. iii. The suit shall be instituted within 30 days from the date of this 4