LAND REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION LAND REVISION NO 26331 OF 2023 (Arising from Misc. Application no 119/2022 from the District Land and Housing Tribunal 1 Mkuranga.) BETWEEN SALUM ALLY KITIMLA............................................................................. APPLICANT VERSUS JUMANNE ABDALLAH KAWAMBWA................................................... RESPONDENT RULING Date of last order: 12/12/2024, 20/12/2024 Date of Ruling: 23/12/ 2024 S.D MWAIPOPO J This is a ruling in respect of the issue raised by the court suo motto on the competency of the Application for Revision filed by Salum Ally Kitimla versus Jumanne Abdalla Kawambwa. In the course of composing its ruling the court noted that the Applicant had filed his Application for revision as Salum Ally Kitimla as the Applicant however, in his submissions in chief he referred to himself as Salum Ally Kitimla as the Administrator of the estate of Ally Hassan Kitimla. Considering this anomaly, the court on 28th October 2024 ordered the 1 parties to address it on the competency of the Application and the appropriateness of the Applicant appearing differently in the Application as such. The hearing of the issue proceeded by way of written submissions. Both parties filed their submissions in court. The Applicant in his submissions gave a background that gave rise to the filing of the instant matter which is before this court. However, I shall not reproduce it in my ruling. As far as the issue of changing his position in the case as an administrator of the estate is concerned, the Applicant proceeded to concede to it citing human errors. Submitting on the issue raised by the court, the Respondent stated that the Applicant has filed an application for revision challenging the decision in Misc. Application no 119/2022 arising from the DLHT for Mkuranga. Throughout his Application in the Tribunal and the High Court he never indicated that he was suing as an administrator of the estate until he filed his submissions in chief. Therefore, it is not clear whether he is suing as Salum Kitimla or as an administrator of the estate. That if he is suing as administrator of the estate at this stage then he has introduced a new issue which is not proper before the court. Having gone through the submissions of the parties this court has observed that the Applicant filed his Application for revision as Salum Ally Kitimla as per his Affidavit. However, in the course of filing his submissions in chief he filed them as an administrator of estate of Ally Hassan Kitimla. 2 He has also conceded this fact in his written submissions citing human errors. I have also noted in his Affidavit and submissions the Applicant is making references of him being an administrator of estate of his late father having been appointed by Kibiti primary court in 2018 following the decision of DLHT for Mkuranga which quashed the decision of Mwaseni ward tribunal, for lack of administration letters, for both parties. Be it as it may, I agree with the Respondent that the Applicant has introduced something new in the proceedings at this stage. That if the Applicant wanted to sue as Salum Ally Kitimla then he should do that in accordance with the procedures and appear as such in all the documents filed in court. There has to be consistency. And if he is suing as an administrator of the estate of his father he should follow the proper procedure laid in law for filing such a case in court considering that there are also records of the lower court. It is trite law that parties positions in a case cannot be just changed abruptly or in the middle of proceedings as parties would wish and without leave of the court. Furthermore, pleadings must demonstrate consistency in the names, title and positions of parties throughout the proceedings. As adumbrated herein above, the Applicant in this case initially filed an application in his own capacity and then suddenly and without leave of the court he filed the submissions as an administrator of the estate of his late father, which is not acceptable or in line with the legal requirements and procedures of filing cases. 3 Now what is the fate of the Application for revision now under determination. In his submissions, the Applicant while conceding that there is a defect in his Application, he has also implored this court to apply the provisions of Article 107A of the Constitution of the United Republic of Tanzania, 1977 as amended, to allow him to do the necessary amendments. Based on the submissions above, I cannot apply the provisions of Article 107A of the Constitution of the URT, 1977 in the circumstances of this case and instead I proceed to strike out the Application for being incompetent, improper and for failure to seek leave of the court to change the position or capacity of the Applicant. The Applicant is ordered to file a proper Application with proper parties in in court subject to the law of limitation. Each party shall bear its own costs. Dated at Dar es salaam this 23rd Day of December 2024 ■ i fev S.D. MWAIPOPO JUDGE 23/12/ 2024 4