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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO MISCELLANEOUS LAND APPLICATION NO. 25256 OF 2024 PRISCA KITAMBI APPLICANT LAURENCIA M ANATHE 2^0 APPLICANT VERSUS WATUMISHI HOUSING COMPANY......... 1®^ RESPONDENT THE ATTORNEY GENERAL 2^° RESPONDENT RULING October 2024 KINYAKA, J: Under the certificate of urgency, the present application was preferred by the applicants in an attempt to move this Court by way of chamber summons predicated under Order XXXVII Rule 1(a), sections 68(e) and 95 of the Civil Procedure Code Cap. 33 R.E. 2019 to issue both ex parte and interpartesox^exs as follows: 1. That this Honourable Court be pleased to grant an order for temporally injunction to restrain the 4^^ and 5*^^ Respondents respectively their relatives or their agents or workmen from trespassing or seiiing or disposing or leasing or evicting the applicants or transferring Plot No. 644 House No. 53 Mkundi Area of 1 the I®' applicant and Plot No. 644 House No. 05 Mkundi Area within Morogoro municipal council pending hearing and determination of the main suit pending in this court. 2. Cost for this Application be provided. The application was supported by the joint affidavit of Prisca Kitambi and Laurencia M. Anathe, the applicants herein. The brief facts leading to the present application are that, before this Court, the applicants instituted a land dispute registered as Land Case No. 7643 of 2024 against the respondents. However, on 28"" August 2024, the respondent instructed a court broker to demand payment of rent or evict the applicants from the houses the subject of the main case. Acting on the instruction, on 4'^ October, 2024 the court broker blocked all entrances of the houses occupied by the applicants restraining them from entering the same. In an attempt to salvage the situation, the applicants filed the instant application imploring the Court to grant the orders sought on the following grounds; 1. That the house in dispute is being used for family accommodation, thus all inconveniences brought by the 1^ respondent is disrupting peaceful enjoyment of the house by family members; 2. That there is dispute pending in the high court over ownership of the disputed property and no any inconveniences shall be caused to the respondents if the order sought for is granted; 3. That the applicants have grater chances to succeed in the main case which is pending for determination in this honorable court; 4. That in case this application is not granted the applicants shall suffer irreparable losses as they will be stranded in the city with no alternative place to live and the main case pending in this court shall be a nugatory. When the application was tabled before me for hearing, the applicants had the legal services of Advocate Mkilya Daudi, whereas Ms. Emma Ambonisye and Elifrida Mutashobya, all state attorneys entered appearance for the respondents. Upon taking the floor, Ms. Ambonisye informed the court that, the respondents' response in the counter affidavit is centered on who is the rightfully owner of the suit property which require this Court to ascertain from the main suit. As such, she prayed for an order granting the present application within the shortest time pending the determination of the main suit. On his part, Mr. Mkilya acceded to the prayer. He also pressed for the injunction order to be granted within the shortest time possible pending determination of the main suit within the shortest time. Being an application, and despite the respondents' concession to the application, I must be satisfied that the affidavit in support of the application demonstrate sufficient grounds for the grant of the present application. Paragraphs 1 and 5 of the affidavit reveal that the applicants have a land case pending before this Court. The Land Case No. 7643 was lodged in the Court on 8'^ April 2024. In the said land case, and in paragraph 2 of the affidavit, the applicants claim for breach of the purchase agreement resulting from the 1=^ respondent's act of instructing her broker to evict the applicants from the suit properties and auction the applicants' assets. They further complained of the 1=^ respondent's wrongful demand of rental payments as per annexure L-1 despite them being owners of the suit properties and not tenants. Paragraphs 3 and 4 of the affidavit reveal that the respondent blocked entrance of the house used for accommodation by the T'^ respondent and her family preventing her and her family from entering the house as shown in the photographs attached to the affidavit as annexure L-2. It is in paragraph 6 that the applicants contend that there are greater chances of success in the land case pending before the Court. They stated in paragraphs 7 and 8 that if the application is not granted, the applicants shall suffer irreparable loss as they will be stranded with no place to live and the pending land case will be rendered nugatory. The grant of interlocutory injunction involves the exercise of discretionary powers of this Court. Notably, the principles governing the grant of injunctive orders like the present one have been articulated in the landmark case of Atilio v. Mbowe (1969) HCD 284 namely: (i) That there must be a serious question to be tried on the alleged facts and a probability that the plaintiff will be entitled to the relief prayed; (ii) That the court's interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established; and (ill) That on the balance there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from the granting of it. Flowing from the above, the first question to be resolved is whether from the pleadings and parties'submissions there are triable issues/ prima facie r- case. Admittedly, the contents of paragraphs 1, 2, 5 and 6 of the affidavit demonstrate that there is a serious question to be tried by the Court on the alleged facts. The serious questions involved in the land case are whether the applicants are owners of or tenants in the suit properties; whether the 1^ respondent breached the terms of the purchase agreement; and whether the applicants are obliged to pay rent for their occupation in the suit properties. Based on the foregoing, I am satisfied that there are triable issues to be considered and determined by the Court. On that regard, I hold that the first condition has been met. As for the probability that the applicants might suffer irreparable injury, it is without doubt that the act of the respondent to instruct her agents to evict the applicants and block the 2"^ applicant's house preventing her from accessing entrance to the same, affect not only the applicants' and their families' habitual occupation of the suit properties before their complaints are determined by the Court, but also render the pending land case of no effect. Reading from the counter affidavit, the 1=^ respondent has not denied her attempts to evict the applicants and to block the 2"'' applicant's entrance to her occupied house. It means that if the acts are left without interference by this Court, there will be no essence for this Court to determine the applicants' complaints in the main suit which is centered on their entitlement to continue occupying the suit properties. I find it to be necessary for this Court to interfere in order to protect the applicants from the irreparable injury including the applicants' and their families' loss of residence before their legal rights are established in the pending land case. Notably, the and 2"*^ applicants have been occupying the suit properties since 2016 and 2017, respectively, upon conclusion of the respective agreements. Based on the above, balancing between the rights of the applicants to have their complaints determined by the Court and the rights of the 1^ respondent to have vacant possession of the suit properties whose ownership is in dispute, I find that there will be greater hardship and mischief suffered by the applicants from withholding of the injunction than that which will be suffered by the respondents from granting the same. I find that there will be more prejudice to the applicants and their families who have been residing in the suit properties for a considerable number of years than the 1^^ respondent who will be able to recover the suit properties and rental payments, if any from the applicants' salaries. On the strength of my findings above, and considering that the respondents conceded to the grant of the application for an expeditious determination of the land case, I am satisfied that this application has j£> merit and I proceed to grant the order sought by the applicants in the chambers summons interpartes. Consequently, the respondent, her agents and workmen are restrained from trespassing, selling, disposing, leasing or evicting the applicants, or transferring Plot No. 644 House No. 53 and Plot No. 644 House No. 05 both located at Mkundi Area, within Morogoro Municipality in Morogoro Region occupied by the and 2"" respondents, respectively, pending hearing and determination of Land Case No. 7643 pending in this Court. Considering the respondents' concession to the application, I make no order to costs. It is so ordered. DATED at MOROGORO this 1/^ day of October 2024. H, A:klNY^KA JUDGE y j i 17/10/2024 // "^y