polycarp razaro mahukutu v rashid kavikuta another 2024 tzhclandd 15 29 january 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE N0.382 OF 2023

POLYCARP RAZARO MAHUKUTU PLAINTIFF

VERSUS RASHID KAVIKUTA. DEFENDANT KABANGO GENERAL BUSINESS LTD 2^^ DEFENDANT

RULING Date ofLast Order: 29.11.2023 Date ofRuling: 29. 01.2024 T.N. MWENEGOHA,J In this Ruling, I am invited to decide on the merits or otherwise of the preliminary objection by the respondent that, the instant case is res judlcata to Shauri Na.33/2008, decided by the Kawe Ward Tribunal, where the decision was in favour of the defendant. In her written submissions, Advocate Irene Felix Nambuo for the defendant maintained that, after the decision of Kawe Ward Tribunal was out, then the plaintiff filed a Land Appeal No. 47 of 2009 before the Kinondoni District Land and Housing Tribunal, which overturned the decision of the Ward Tribunal in favour of the plaintiff. However, the case was finalized by the Misc. Land Appeal No. 160 of 2009, before this court, where the decision of the Ward Tribunal was restored in favour of the defendant on the 25^^ October 2011. She claimed further that in this case, the plaintiff has claimed that the defendant has trespassed on the suit land, but the reality is that the defendant wa executing a Decree given by Kawe Ward Tribunal, vide Execution No. 332 of 2014, with assistance from the 2"^ defendant. Therefore, this case is contrary to section 9 of the Civil Procedure Code, Cap 33 R.E 2019 and the case of Tanganyika Motor Ltd versus Continental Forwarders & Another {1997} TLR 158 and also the case of George Shambwe versus Tanzania

Italian Petrolium Company Ltd (1995)TLR 21. In reply, Advocate Emanuel Omary Machibya for the plaintiff insisted that, the case is not res judicata. That, the instant case is new and has never been entertained by any Court. That, the case referred by the 1®^ defendant which originated from Kawe Ward Tribunal involved an unsurvayed land, adjacent to the suit land. That, the plaintiff does not object the Execution of the Decree of the Kawe Ward tribunal, but the defendant instead of Executing the said Decree, they have evicted tenants in a disputed property with Residential License No. KND022087, Land No. KND/KWE/KLIK15116, issued on the 9"^ of February, 2007, which was not part of the case. I have gone through the submissions of the parties through their respective counsels. The arguments of I4r. Machibya for the plaintiff is that, the instant case is new, and has not been determined by any Court. He insisted that, the case at hand, involves a suit property, with a Residential License No. KND022087, Land No. KND/KWE/KUK15116, issued on the 9^ of February, 2007. The same was not part of the dispute, subject to Execution. That, the former case involved an unsurvayed landed property adjacent to the disputed land in the present suit. Upon perusal of the records at hand, particularly the Written Statement of Defence by the defendant, I came across a Judgment of Hon. R.L David,

learned Chairperson of Kinondoni District Land and Housing Tribunal, dated 21^ August, 2008, vide Land Appeal No. 47 of 2009, of which this court took Judicial Notice of. At page 2, paragraph of the said Decesion, it has been shown that, the land subject to dispute at Kawe Ward Tribunal had two houses, both being built by the plaintiff herein above, Polycarp Lazaro, who was the appellant in the said case. It was the finding of the learned Chairperson in his Decision that, if the disputed land belonged to the defendant(Rashid Kavikuta), respondent in Land Appeal No. 47 of 2009, he could not have remained silent when the plaintiff was constructing the said housed in the land in dispute, hence the appeal was decided in favour of the plaintiff based on this reason among others. But, the decision of Hon. Gwae J, in Misc. Land Appeal No. 160 of 2009, overturned that of Kinondoni District Land and Housing Tribunal, dated 21^ August, 2008, vide Land Appeal No. 47 of 2009 and restored the decision of the Kawe Ward Tribunal in favour of the 1^*^ defendant. Basing on these facts, it shows that, the dispute between the parties was on a land, which had more than one building at that material time. Infact, their dispute as claimed before the Ward Tribunal of Kawe, per the records at hand, was on a land, measuring Vi acres, which is said to have been sold by one Khamis Mkajima to the

plaintiff on 5^^ June 1991. Therefore, the dispute was on the whole land and the plaintiff had already erected two building when the case was filed before the Ward Tribunal. His claims that the dispute in former cases involved a land adjacent to the suit property subject to this case are unfounded. The instant case is obviously res judicata. It involves the same parties, same subject matter and same cause of auction. Obtaining a Residential License over the said property does not mean that the same was out of the disputed land. For these reasons, I find the instant suit to be against the mandatory provisions of section 9 of the Civil Procedure Code, Cap 33 R.E 2019 and also the case of Paniel Lotta versus Gabriel Tanaki & Others(2003)TLR 312. Hence, the objection has merit and the same is sustained accordingly. In the end, I struck out this suit with costs. u] T.N. MWENEGOHA, JUDGE, 29/01/2024