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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 2959 OF 2025 SOSTHENES RUTTA BRUNO................................................... 1ST APPLICANT DIANAROSE BUDDY BRUNO.................................................. 2nd APPLICANT VERSUS KINONDONI MUNICIPAL COUNCIL............................................................. 1stRESPONDENT COMMISIONER FOR LANDS........................................................................ 2ndRESPONDENT THE REGISTRAR OF TITLES........................................................................ 3rdRESPONDENT HON. ATTORNEY GENERAL........................... 4th RESPONDENT RULING 12/02/2025 & 20/03/2025 N.E. MAN DI A, J This is an application for Mareva Injunction brought under section 2(3) of the Judicature and Application of Laws Act [Cap 358 R.E 2019] and section 95 of the Civil Procedure Code [Cap 33 R.E 2019]. The applicants are seeking for orders to restrain the 1st , 2nd , 3rd and 4th respondents, their agents and or whoever purporting to act on the 1st, 2nd , 3rd and 4th respondent's instructions from interfering, alienating, tempering, revoking or cancelling the right of occupancy in the name of the applicants and/or demolishing the applicants' properties comprised in Certificates of Title Nos.79039, 79049, 79085, 79154, 79155, 79156, 79157, 79158, 79255, 79278, 79279, Boko Area, Kinondoni Municipality, Dar es Salaam City and/or evicting the applicant from the suit premise, pending an intended suit that will be filed by the applicants after expiration of the statutory notice period requiring 90 days to lapse. 1 The brief background of the application as gathered from the record is that: the applicants alleges to be registered owners of properties under Certificates of Title Nos. 79039, 79049, 79085, 79154, 79155, 79156, 79157, 79158, 79255, 79278, 79279 in Boko Area, Kinondoni Municipality, Dar es Salaam. The 1st applicant alleges that he purchased the said properties from Joseph Rwechungura Kyakura, who was the original owner having been granted an offer of right of occupancy registered on 08.06.1979 who sold his property to the 1st applicant through sale agreement dated 03.05.1999. Another property was purchased by the 1st applicant from Fredrick Salvatory Kagaruki having been granted title deed No. 33901 registered 08.01.1988 who sold it to the 1st applicant through sale agreement dated 31.05.2002. Another property was purchased by the 1st applicant from one I. M. Bhoke Munanka through sale agreement dated 05.07.2007. Another piece of land was purchased from Vera Kalikwera Omar. The property with title No. 33901 registered on 08.01.1988 and an offer of right of occupancy registered on 08.06.1979 were registered as farms. That the properties purchased from one I.M Bhoke Munanka and Vera Kalikwera Omar were unsurveyed but surrounded by the two farms. That following Boko area's declaration as a township, the former owners requested Kinondoni Municipal Council to resurvey the properties and issue new title deeds in the applicants' names. The applicants' processed titles for the unsurveyed properties, developed them with multi-billion-value buildings and occupied them peacefully with 2 their family for over 25 years. That, on 06.02.2025, unknown persons marked the properties with "SOMJI BOMOA BY KMC 05.02.2025," suggesting Kinondoni Municipal Council's involvement. Following these events, the applicant has filed the present application. The application was heard by way of written submission. The applicants were represented by Mr. Erick Kanga, learned Advocate, whereas the respondents were represented by Ms. Lilian Mirumbe, learned State Attorney. In support of the application, Mr. Kanga prayed to adopt the contents of affidavit in support of the application to form part of his submission. He submitted that as a general principle, courts are inclined to grant orders for Mareva Injunction through the guidance made the case ofATILIO VS. MBOWE [1969] HCD 284. He also cited the case of CHRISTOPHER P. CHARLES VS. COMMERCIAL BANK OF AFRICA, Misc. Civil Application No. 635 of 2017 (unreported) to substantiate his argument that for an injunctive order to be issued the court must consider that the applicant has met all the conditions stated in the cited cases. He cited the case of UGUMBA IGEMBE & ANOTHER VS. TRUSTEES OF TANZANIA NATIONAL PARKS & ANOTHER, Misc. Civil Application 1 of 2021 where the High Court held that: "Our law is now settled that; this court can grant interim orders under section 2 (3) of the JALA in appropriate situations. It can do so under circumstances that are not specifically covered by the CPC. Such circumstances include where there is no suit pending in court. The practice is based on the common law principle of Mareva injunctions" 3 In respect of the first condition, Mr. Kanga submitted that there is a serious triable between the applicants and the 1st respondents as pointed out in paragraphs 2 up to paragraph 7 the applicant's affidavit in support of the application. That in the said paragraphs, the applicants' have established their ownership on the suit property and how and when those properties came into their ownership. That they have remained in the suit properties for 25 years uninterrupted and if at all there was anything wrong, the respondents would have taken action since they occupied the same. That the title deeds were procured by following the law and procedure at the instance of the respondents. Mr. Kanga submitted further that on 06.02.2025, some unknown persons to the applicants invaded the suit properties and marked them with words SOMJI BOMOA BY KMC 05/02/2025 which has been admitted by the respondents in paragraph 6 of their counter affidavit. This entails that there is a serious legal issue to be tried and the applicants stands in a danger of being evicted and their property being demolished by the 1st respondent. He is of the view that the first condition in ATILIO's case has been established. He cited the case of TANZANIA SUGAR PRODUCERS ASSOCIATION VS. THE MINISTRY OF FINANCE OF THE UNITED REPUBLIC OF TANZANIA & THE HON. ATTORNEY GENERAL Misc. Civil Case No 25 of 2003 where it was held that: "It follows inevitably, in my view, that an injunction, as a public law remedy may be issued even as an interlocutory injunction, to secure 4 immediate interim protection of the citizens/appHcants rights, if a strong prima facie case, call be shown, until the legality of the decision, under challenge has been determined" On the second condition, Mr. Kanga submitted that the court interference is necessary to protect the applicants from injuries which may be irreparable before their legal rights are established as indicated in paragraph 7, 10 and 12 of the applicants affidavit. That the applicants have employed and dedicated majority part of their hard earned income, energy and youth to accomplish development of the properties in dispute which are worth of billions of money and are now retired and have their families and relative residing within the properties for more than twenty 25 years. That the fact that the applicants have resided in the suit premises for more than 25 years, an act of evicting them without any cause and notice will leave the applicants in mental anguish, stress and disorder which cannot be atoned by way of damages. Also that since are retired and in their old age, they are not in the position to establish another residence and cannot be adequately compensated in monetary terms. That without the intervention of this court, the respondents will proceed to evict the applicants and demolish the suit property as indicated in the paragraph 8 of the applicants' affidavit and noted in paragraph 6 of the respondents' counter affidavit hence, the envisioned land case against the respondents after expiry of 90 days' notice will be rendered nugatory. He prayed that this court be pleased to issue the orders sought. '<3^ 5 On the third condition, Mr. Kanga submitted that it is trite that the applicants will experience greater harm compared to the respondents if the order sought is not granted. That the respondents have not demonstrated any harm or suffering that would occasion to them. That the balance of convenience tilts in favour of the applicants who have remained in the properties for more than 25 years other than the respondents who have never been in occupation of the suit properties. Finally, Mr. Kanga prayed for the court to find that the applicants has displayed and met the thresholds established in the granting the orders sought. In response, Ms. Mirumbe contended that the application sought is devoid of merit and the same has been brought as an act of abuse of court process. She prayed to adopt the depositions stated on their counter affidavit to form part of her submissions. She submitted that the applicants have preferred their application under the provision of section 2(3) of the Judicature and Application of Laws Act(supra) and section 95 of the Civil Procedure Code(supra). That though this court is conferred with powers to grant temporary injunction under the above provision of law, the same is granted upon satisfactions of certain conditions by the applicant. She cited the case of T.A. KAARE VS. GENERAL MANAGER MARA COOPERATIVE UNION (1984) LTD (1987) TLR 17 where it was held that: 6 "The power to grant interlocutory injunction has always been discretionary, to be exercised judicially by the application of certain well - settled principles". She also cited the case of CHRISTOPHER P CHALE VS. COMMERCIAL BANK OF AFRICA (supra) in which it was held that: "it is also the law that the conditions set out must all be met and so meeting one or two of the conditions will not be sufficient for the purpose of the Court exercising its discretion to grant an injunction". On the first condition, Ms. Mirumbe replied that the affidavit in support of the application does not disclose facts that suggest that there is a serious question of law or facts to be tried by this court. That it narrates a story on how the applicants had obtained the disputed property and investment of multimillion made by them. That under paragraph 6 of respondents' counter affidavit it has been established that the plots in dispute has been remitted to the President of the United Republic of Tanzania by virtue of Government Notice No. 670 of 30.05.1975 hence, by any means there is no serious question to be tried on the disputed property. On the second condition, Ms. Mirumbe submitted that the applicants have failed to meet the requirement. It is so because courts will only grant injunctions if there is evidence that there will be irreparable loss which cannot be adequately compensated by award of general damages. She cited the case of AMERICAN CYNAMID CO. VS ETHICON LTD [1975] 1 All ER 504 at p.509, where Lord Diplock stated that: - PF 7 "... The object of the temporary injunction is to protect the plaintiff against injury by violation of his right for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour on the trial..." She contended further that, going through the applicants' affidavit and reply to counter affidavit, the applicant failed to demonstrate what kind of injury they stand to suffer in the event the order is not issued by this Court. That the applicant is giving mere statement that there will be irreparable loss but no exact explanation as to how they will suffer and how such damages could not be adequately remedied or atoned for by damages. She cited the case ABDI ALLY SALELHE VS. ASAC CARE UNIT LIMITED AND TWO OTHERS, Civil Revision No. 3 of 2012, (unreported) 8 where the CAT held: - "Once the court finds that there is a prima facie case, it should then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned for by way of damages. There, the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way be changed for the worse; that he will suffer damage as a consequence of the plaintiffs action or omission, provided that the threatened damage is serious, not trivial or minor, illusory, insignificant, or technical only". Ms. Mirumbe submitted that the applicants have miserably failed to state how they will suffer and how such damages will be substantially and could never be adequately remedied or atoned for by damages or injury which cannot possibly be repaired. She cited the case of SAID SULTAN NGALEMA VS. ISACK BOAZ NGWINAWISHI & 4 OTHERS, Civil Application No. 8 362/17 of 2021 (unreported) to bolster the argument that irreparable loss must not only be mentioned but adequately proved in the affidavit. On the balance of inconveniences, Ms. Mirumbe submitted that the applicants have failed not only in the affidavit but also their submission did not state how balance of convenience lies in their favour. She cited the book of Sarkar on Code of Civil Procedure, 9th Edition, 2000 at page 1997 that: "Where the plaintiffs are likely to suffer irreparable injury in case the injunction is refused and balance of convenience also lies in their favour they are entitled to grant an interim injunction". That going through the applicants' affidavit and reply to counter affidavit, there is nowhere the applicants have pleaded that they will suffer greater loss than the respondent if an order for temporary injunction is not granted hence, they cannot submit at this stage as the same will be a statement from the bar and the same cannot be regarded as evidence. She finally submitted that the present application has no prima facie case or serious questions of facts or issues to be tried and likelihood of the applicants' to succeed, the applicants' will not suffer irreparable loss which cannot be adequately remedied and on the balance of inconveniences; that the applicants' will not suffer greater loss than the respondent if an order for temporary injunction is not granted. She prayed for the court to dismiss the application with costs. In a brief rejoinder, Mr. Kanga reiterated his submission in chief and maintained that the applicant has submitted an application as per the 9 requirements of the law which justify the power of the court to grant interim orders under section 2(3) of the JALA where there is no suit pending in court. He disputed the allegation that the applicant has failed to state how he will suffer irreparable loss. That paragraph 12,13 and 14 of his affidavit and paragraphs 11 and 12 of his submission in chief shows that the applicant will suffer irreparable loss than the respondent and the applicant properties is residential house which will lead the applicant to be homeless. That the cited case of MWAKEYE INVESTMENT LTD VS. ACCESS BANK TANZANIA LTD, Misc. Land Application No. 654 of 2016 is distinguishable from the case cited by the applicant. Mr. Kanga reiterated his submission in chief that the applicant will suffer and experience a greater harm compared to the respondents if the order is not issued in their favour. That the respondents have not demonstrated any harm or suffering that would occasion to them. That the common law principle of Mareva injunction does not need the prima facie case or pending case in the trial court. Finally, he prayed for the court to hold that the applicant has advance good and reasonable grounds which justify for the court to exercise its discretion judiciously. Having gone through the rival submissions, the affidavit and counter affidavit of the parties, the pertinent issue for my determination is whether the application has merit or not. It is a trite law that Mareva Injunction is usually granted in a situation where the court is satisfied that there is no pending suit. It may be applied in io the circumstance where the applicant cannot institute a suit because of the existing legal impediment, where the law requires that a statutory notice be issued before the institution of the suit. It is therefore the duty of the court to make sure that the applicant has met all the conditions set out in ATILIO's case (supra) in granting the injunction. The conditions are such that: 1. The applicant must demonstrate the existence of a serious triable issue on the alleged facts and probability that the applicant will be entitled to the reliefprayed. 2. The Applicant must demonstrate that the courts interference is necessary to protect the applicant from any kind of injury which may be irreparable before his legal rights are established. 3. The Applicant must demonstrate that on the balance of convenience there will be greater hardship suffered by him from withholding the prayed order than will be suffered by the Respondent from granting it. On the first condition, having gone through the records of the application it is my considered view that paragraphs 2 and 3 of the applicants' affidavit established that the applicants' are the lawful owners of the disputed properties whereas under paragraph 3 of the respondents' counter affidavit they have stated that the 1st respondent is the owner of the said properties having acquired them by virtue of GN. No. 670 of 30.05.1975, the fact denied by the applicants under paragraph 3 of their reply to counter affidavit. It is clear from these conflicting statements that there is a tension and misunderstanding between the applicants on one side and the 1st respondent on the other side as to who is the lawful owner the properties in dispute. This scenario in my view, means that there is a serious legal issue to be tried by li this court and that the applicants are entitled to the relief sought before being evicted and their property being demolished by the 1st respondent. In the circumstance, it is my considered observation that there exist a prima facie case which calls for the determination of this court. Hence, i am satisfied that the applicants have met the first condition for the grant of injunction. Coming to the 2nd condition, it is on record under paragraph 8 and 14 of the applicants' affidavit that the 1st respondent has invaded the properties in dispute with an intention to demolition the same. That the intended demolition will render the applicants, their relatives and dependents to become homeless. Also the respondents' counter affidavit under paragraph 6 have admitted that they have marked the suit property and that the applicants are trespassers. It is clear from the foregoing facts that the 1st respondent has marked the disputed properties with an intention of evicting the applicants through the intended demolition. I have noted with concern the submission made by Ms. Mirumbe that there is no evidence that the applicants will suffer irreparable loss which cannot be adequately compensated by award of general damages. I have also noted with concern the decision in the case of AMERICAN CYNAMID CO. (supra) where it was stated that: - "... The object of the temporary injunction is to protect the plaintiff against injury by violation of his right for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour on the trial..." [Emphasize added] 12 I have careful ready the affidavit and reply to counter affidavit of the applicants, I have noted the fear of the applicants from losing their home together with their relatives and dependants. I am aware as observed in the cited case above that the applicants have a right to shelter, that is to have a home. It is my considered observation that demolishing the disputed properties before determination of the intended suit is violation the applicants' right to have a shelter in which they have resided for 25 good years uninterruptedly. I am persuaded by the holding of this court in the case of PONEKA PATRICK MIHAYO alias PATRICK LUTANDULA MIHAYO & ANOTHER VS. CRDB BANK Pic, Misc. Land Appl. No. 688 of 2023, that an act of evicting an applicant from his residence home falls within the ambit of irreparable loss since the same is to curtail the applicants' from right of having a shelter before determination of the rights at hand. This to me is enough to explain the kind of irreparable injury the plaintiffs would suffer upon refusing to grant this application. I am therefore of the settled position that the applicants will suffer irreparable injury if the order sought is not granted than it would be for the respondents. I am again satisfied that the second condition has been met. On the last condition that the applicants must demonstrate that on the balance of convenience there will be greater hardship suffered by him from withholding the prayed order than will be suffered by the respondent from granting it. As I alluded to in the second condition above, it is my firm 13 observation that the applicants will experience greater harm compared to the respondents if the order is not issued in their favour. The balance of convenience tills in favour of the applicants' than the respondents who in my view have not demonstrated any harm or suffering that would occasion to them if the order sought is granted. The applicants have been staying in the disputed properties for more than 25 years uninterruptedly. Without hesitation, I find that the applicants have met the third condition. I am aware that for an order of temporary injunction to be issued, all conditions in Atilio's case (supra) must be met commutatively. In the case of Christopher Paul Chale (supra) it was held that: "... it is also trite law that conditions set out must all be met and meeting one or two of the condition will not be sufficient for the purpose of the court exercising its discretion to grant an injunction"[Em\)has\z.e added] Consequently, I am satisfied that the applicants have met all the conditions for the grant of Mareva Injunction. I hereby grant the order of Mareva injunction pending expiry of the 90 days' notice to sue the government. Costs to follow events. It is so ordered.