SAID OMARY KITAMUYO SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 13264 OF 2024 (Originating from the Judgment and Decree of the District Land and Housing Tribunal for Mkuranga District at Mkuranga, in Application No.29 of2022 delivered on 24h April, 2024) SAID OMARY KITAMUYO................................................ APPELLANT VERSUS JACKSON ISRAEL MOSHI....................................... 1st RESPONDENT MARIAMU OMARY KITAMUYO (Administratrix the Estate of the late OMARYSHAMTEKITAMUYO).................................. 2ndRESP0NDENT JUDGMENT 11th September & l$h October, 2024 L.HEMEDrJ At the trial Tribunal, the 1st Respondent herein Jackson Israel Moshi, sued the herein Appellant, Said Omary Kitamuyo and the herein 2nd Respondent, Mariamu Omary Kitamuyo (Administratrix of the estate of the late Omary Shamte Kitamuyo) for him to be declared owner of the suit piece of land situated at Garage Area, Kibiti within Kibiti district in Coastal i Region. The 1st Respondent also sought for an order that, the Appellant to vacate the suit premises. The record of the trial Tribunal shows clearly that the Appellant disputed the claims before the trial Tribunal. He averred to be the owner of the said piece of land since the year 2002 after being allocated by the Village Council. On her part, the 2nd Respondent admitted and supported the claims of the 1st Respondent to have purchased the suit piece of land on 25th February 2022 for TZS. 15,000,000/=. Having heard evidence from all parties concerned, the trial chairperson found in favour of the 1st Respondent herein. The trial Tribunal declared him owner of the disputed land and ordered the Appellant to vacate from the suit premises. He was also condemned to pay costs of the suit. The Appellant was aggrieved by the decision of the trial Tribunal hence the instant appeal on the following grounds:- '7. THAT, the proceedings were nullity, as the Honourable Tribunal had no jurisdiction to here(sic) and determine the application, pursuant to section 13 of the Land Disputes Courts Act(Cap 216 R:E 2 2020, as amended by the Written Laws Miscellaneous Amendments(No.l)Act, 202. (sic) 2. THA T, the Honourable Tribunal misdirected itself by ordering eviction of the Appellant from the disputedproperty, without considering that Exhibit PI was a nullity in all respect. 3. THA T, the Honourable Tribunal misdirected itself and grossly erred in law and in fact by adjudging that the disputed property was owned by the late Omary Shamte Kitamuyo without any cogent proof to that effect, whereas the evidence established that the saidproperty belonged to the Appellant, who was compensated as owner, by Tanesco, when it acquire (sic) part of his property. 4. THAT, the Honourable Tribunal improperly relied upon disposed of(sic) the disputedproperty to the 1st Respondent by the 2nd Respondent, on the protex that it was owned by the late Omary Shamte Kitamuyo, while no any cogent evidence was established to that effect, (sic)" The Appellant ended up praying for the appeal to be allowed with costs by setting aside the whole judgment and decree of the trial Tribunal dated on 24th April 2024. Hearing of the appeal was by way of written submissions. 3 Mr. Karilo Mulembe Karilo, learned advocate acted for the Appellant while the respondents enjoyed the legal service of Ms. Sakina H.Sinda, advocate. Having gone through the rival submissions, I have opted to begin with the 1st ground of appeal where the Appellant is faulting the proceedings of the trial Tribunal for having conducted contrary to the provision of section 13 of the Land Disputes Courts Act [Cap.216 RE 2019]. In his submission, the learned counsel for the Appellant asserted that the trial Tribunal determined the matter without certification of the ward tribunal that it had failed to settle the matter amicably. In his view, since the requirement is mandatory, the proceedings of the trial Tribunal are a nullity. In her part, the learned counsel for the respondents supported the 1st ground of appeal where she stated that the trial Tribunal acted prior to the matter being referred to the ward tribunal for mediation. Nevertheless, she contended that it was the duty of the trial tribunal to make sure that before the matter was filed, parties fulfilled the requirement of the law. The learned counsel argued the court to allow the appeal without costs as the error was committed by the trial Tribunal. 4 The arguments of both parties show that there is consensus ad idem that the proceedings before the trial Tribunal were conducted contrary to section 13 of the Land Disputes Courts kcX.(supra). The said provisions as amended by the Written Laws (Miscellaneous Amendment) Act No.3 of 2021 readth as follows: - . the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably... "[Emphasis added] The above provision is couched in the mandatory terms that the District Land and Housing Tribunal should not receive and hear any land dispute unless the ward tribunal has certified to have failed to settle the matter amicably. In the matter at hand the 1st Respondent did not plead in his application that he referred the matter to the ward tribunal for mediation prior to filing it in the District Land and Housing Tribunal. I have also gone through evidence on record and found that it was not proved during trial if the 1st Respondent had tried amicable settlement through the ward tribunal. The question is whether failure to attempt mediation vitiates proceedings. The law sets settlement of land dispute by the ward tribunal as 5 condition prior to instituting a matter in the District Land and Housing Tribunal. As aforesaid, the sentence shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably" is couched in a prohibitive way. This implies that anything done by the District Land and Housing Tribunal contrary to section 13 of the Land Disputes Courts Act(supra) is a nullity. In the instant case, it is obvious that the matter was instituted in the District Land and Housing Tribunal without an attempt to mediate it by the ward tribunal. Therefore, the proceedings, judgment and decree made thereof were a nullity. In the final analysis, I find merit in the 1st ground of appeal. The fact that the 1st ground disposes of the entire appeal, I do not find necessity of determining the other grounds. I do hereby allow the appeal and proceed to make the following orders: - 1. Proceedings, judgment and decree of the trial Tribunal in Application No.29 of 2022 are hereby quashed; 2. If parties are int interested to re-institute the matter afresh, should comply with section 13 of the Land Disputes Courts Act; and 6 3. Each party to bear its own costs. Order accordingly. DATED at DAR ES SALAAM this 15th October,2024 =HEME JUDGE 7