Kaika Saniniu Palanda and Others vs Shabani John Kengia and Others (Misc. Land Application No. 31050 of 2025) [2026] TZHC 3031 (9 June 2026)

Page 1 of 11 THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISC LAND APPLICATION No. 31050 OF 2025

1. KAIKA SANINIU PALANDA
2. ZAKARIA YAKOBO LAIRUMBE
3. KIBONDO LENDITIA NDURE
4. TIKWA PALANDA MBEKO
5. SARUNI SAMWEL ORKELEKI
6. KIROYA TAJEU MOLLEL
7. ASARU KILAU KINYAMWEZI
8. NEMANGA ABRAHAMU KUNNEY
9. MAKANGE SINJORE NDURE
10. LEKISHONI OLOGOTU NDURE
11. EMANUEL MOSES ROYMENI
12. BARAKA OLEMREFU TUKE
13. YAKOBO KISOTA MBE KO
14. LAZARO MWASUNI NDURE
15. MATHAYO PALANDA MBEKO A PPLICANTS
16. MUSA PAULO LAIZER
17. NGIATU ROYMENI KILEMBU
18. ISSAY MOLOIMETI
19. YOHANA SAKTA LEMTERO
20. LAZARO KILAU KINYAMWEZI
21. ABR AHAM LENGIVIDO NGIDATU
22. ISSAYA NDIMBAI
23. LEEYO SINJORE NDURE
24. SHININI TAJEU
25. ALAMAYANI TAJEU
26. LEMSUMBU LADARU LEMASAMBU
27. NGALAMA KIRYA MBEKO
28. LUCAS PAULO LEMTRO
29. MARTINI MOSESS ROYMENI
30. KARIONGI TIKWA PALANDA VERSUS

Page 2 of 11

1. SHABANI JOHN KENGIA
2. BETRAM MTENGA
3. KANANGIRA ELIA MBISE
4. RAMADHANI TAJIRI ALLY
5. HEMED ABAS HEMED
6. SEKIETE TUPATUPA AMANDUS
7. ISSA KENGIA
8. SALIM BEDA
9. HASNI BAKARI
10. ELIUZE AMANI
11. JUDICA OLOMI
12. DICKSONI KIVUYO
13. FRENGI MTENA
14. BAHATI MATHEMU
15. MARTHA INNKO R ESPONDENTS
16. ABASI HEMED
17. HASANI STAKI MCHEZO
18. JOYCE KIBIRI
19. ELIA RAPHAEL
20. ETAEL NKIA
21. SIMANGO OLOTUMU
22. NGINAYA SINDILA
23. MALAKI KILUSU
24. MAIKA ENDEIPA
25. TEME KARDUNI
26. KASILDA JEREMMY M GENI
27. HALMASHAURI YA WILAYA YA SAME
28. DISTRICT COMMISSIONER FOR SAME
29. MARWA VILLAGE COUNCIL
30. ATTORNEY GENERAL RULING 07 th May & 9 th June, 2026 MONGELLA, J.

Page 3 of 11 T he applicants have jointly preferred this application under the provisions of Order I rule 8, Order XLIII rule 2 and Section 105 of the Civil Procedure Code, Cap. 33 R.E 2023 (the Code , henceforth) . T hey are seeking for leave of the Court to file a r epresentative s uit on behalf of 2 36 other community members , residents of Marwa h a m let , Ruvu v illage, Marwa w ard, Same d istrict c ouncil, within Kilimanjaro r egion against the respondent s over ownership of land measur ing 2,887 acres, located at Njankita, Pa tel, Marwa h a m let, Ruvu v illage, Marwa w ard, Same d istrict c ouncil, within Kilimanjaro r egion . The application i s supported by a joint affidavit of the applicants and has been equally contested by the r espondents through joi nt counter affidavit s of the 1 st , 4 th , 5 th , 7 th , 8 th , 9 th 16 th and 17 th respondents and of the 27 th , 28 th , 29 th and 30 th respondent s . The rest of the respondent s did not file their counter affidavit s . Hearing of the application was done by way of written submissions . T he applicants were jointly represented by Mr. John Lairumbe, lear ned Counsel ; the 1 st to 25 th respondent s enjoyed legal services of Mr. Elikunda Kipoko, learned Counsel ; the 26 th respondent was unrepresented and the 27 th to 30 th respondent s were represented by Mr. Mussa Mpogole, learned State Attorney . F or smooth determination of this app lication, I find it conven ient to refer to the submissions by the parties in the course of my

Page 4 of 11 deliberations as to whether the application is meritorious instead of summarizing the same initially . As rightly moved by the applicants, an application for filing a representative suit is governed by the provision s of Order I, rule 8 of the Code. Th e said provision together with plethora of decisions of this C ourt, list out mandatory conditions that must be met for the application of this nature to be granted . T he said conditions are : one ; t here must exist a common interest amongst the applicants, and are willing to join the suit and two ; there is consent from those sought to be represented . (See, Kihila William and 5 Others vs . National Ranching Company Ltd . and 2 Others (Misc. Land Application 11 of 2022) [2022] TZHC 2968 (1 April 2022 , TANZLII ) ; and Daniel Magige Marwa and Anot her vs . North Mara Gold Mine Ltd (Misc. Application 31 of 2022) [2023] TZHC 16381 (23 March 2023 , TANZLII ) . Regarding the first condition o n common interest, and relying on the decision in Abdallah Mohamed Msakandeo & Others vs. City Commission of D SM & Two Others [1998] TLR 439 , it was Mr. Lairumbe’s contention that the pleadings disclose that the applicants and the other 236 persons are lawful owners of a land measuring 2,887 acres, situated at Njankita, Patel, Marwa Hamlet, Ruvu v illage within Same d istrict c ouncil. He further submitted that they all intend to institute proceedings against the respondents over ownership of the said land on the

Page 5 of 11 basis that the 26 th respondent unlawfully allocated the said land to the 1 st

• 25 th respondents. I n his view, therefore, all applicants have common interest over the disputed piece of land against the respondents. S ubmitting in opposition of the first condition , Mr. Kipoko contended that the applicant has failed to show common interests due to the fact that the applicants ’ affidavit is contradictory on the root of the title over the land in dispute , that the applicants failed to establish common root of title. On their part, Mr. Mpogole, and the 26 th respondent also challenged that the applicant s have failed to meet the requirement of common interest, as the deponed facts in the applicants’ affidavit do not correspond with the annexures thereto. In particular, Annexure A - 1, being the minutes of the meeting, which indicate that the applicants were appointed to represent the entire pastoralist communi ty of Marwa v illage, whereas the affidavit states that they were appointed to represent the other 236 persons. I have carefully considered the applicants’ joint affidavit. It states that the applicants, together with the other 236 persons, are the lawful owners of a p iece of land which was allegedly allocated to the 1 st to 25 th respondents by the 26 th respondent. The applicants and the said 236 persons intend to institute a land suit against the respondents in respect of the said p iece of land , which was left to

Page 6 of 11 them thro ugh inheritance from th eir ancestors and they have b een u sing the same for past oral activities . I n my c onsider ed view , t his demonstrat es that the applicants and the other 236 persons share a common interest over the suit land. C ommon interest is exhibited by showing how the applicants and the people inte nd ed to be represented benefit fr om the subject matter of the suit and are going to be affected upon its interference o r alienation . Accordingly, the first condition for this application is found satisfied. Coming to the second condition, that the consent of those sought to be represented must be given ; Mr. Lairumbe argued that the provisions of Order I, rule 8 of the Code, do not make it mandatory for the applicant to the representative suit to first obtain consent of the others intended to be represented. He contended that, in the present application, there is no dispute of interests with those the applicants intend to represent and they all act in good faith as it can be noted through annexure A - 1 to A - 4 of the applicants ’ affidavit. I n support of his position, he cited the case of Yoram Paulo Ndumizi and 5 Others vs . The Permanent Secretary of Ministry of Defence and National Service and Another (Misc. Land Application 88 of 2022) [2023] TZHC 16396 (14 March 2023) .

Page 7 of 11 Mr. Mpogole submitted in opposition that for an application for representative suit to be granted, the consent of the parties sought to be represented must be given. It was his argument that the applicant did not meet the criteria and t hat Mr. Lairumbe misconstrued the provision of Order I rule 8 of the Code by stating that this condition is not a requirement. He f urther pointed out that the meeting held on 11 . 07 . 2025 appointed only 30 persons to represent the pastoralist community of Marwa v illage, contrary to the claim in the j oint a ffidav it of the applicants that there were 236 applicants. Mr. Mpogole went on pointing out that those 30 persons were specifically mandated to defend land allegedly confiscated by the District Commissioner, the District Executive Director and the Marwa Villag e Council, and were not appointed to represent all affected persons in the suit as required under Order I Rule 8 of th e Code . He kept on arguing that the 7 th , 11 th , 19 th and 22 nd applicants were not among the 30 persons authorized by the meeting of 11 . 07 . 2025 to institute the suit on behalf of the alleged 236 applicants and that there were discrepancies between the names and signatures appearing in the j oint a ffidavit and those con tained in the minutes of the meeting. O n their part, Mr. Kipoko and the 26 th respondent were generally of the same view as that of Mr. Mpogole and it was their stance that the applicants had failed to satisfy the Court that leave for a

Page 8 of 11 representative suit should be granted due to the fact that there is no evidence of consent from the 236 persons sought to be represented . I n his rejoinder on this second condition, Mr. Lairumbe basically reiterated his submission in chief insisting that the applicants h ave met the required conditions. Concerning the issue of presence of some applicants who are not among the appointed 30 representatives , Mr. Lairumbe did not have anything to reply thereto. With respect to th is second condition, upon perusal of the applicants’ affidavit and the annexures thereto, I f ound it a pparent that the annexures have not been labelled. Therefore , although the applicants refer to a nnexure A - 1 as evidence of consent appointing t he 30 representatives, I was unable to locate the said a nnexure A - 1 in the record. However, I took the trouble to peruse all the annexures in order to identify the document evidencing that the 30 applicants were appointed by the other 236 persons, as alleg ed in the applicants’ affidavit. I n that course, I was able to locate one annexure which shows that a meeting held on 11 . 07 . 2025, among other agenda s , appointed 30 persons in relation to the pastoralists land dispute. However, neither the minutes of that meeting nor any o ther annexure clearly indicates that the alleged 236 persons expressly consented to be represented by those 30 individuals in the

Page 9 of 11 intended representative suit. I say so because the annexures contain two separate attendance lists relating to different meeti ngs. One list indicates that it pertains to a village meeting held on 18 . 10 . 2017, while the other is described as a list of attendees of a pastoralist s meeting in Marwa v illage. Neither of the two attendance lists indicate whether the persons named therei n attended the meeting of 11 . 07 . 2025 at which the 30 individuals were allegedly appointed to represent them in the intended suit. More importantly, attendance at a meeting cannot, without more and in the absence of clear evidence, be equated with consent t o be represented in legal proceedings. In the circumstances, there is no evidence demonstrating that the meeting held on 11 . 07 . 2025, which appointed the 30 representatives, was attended by the alleged 236 persons sought to be represented, or that those ot her persons expressly consented to such representation. Accordingly, I find that the applicants have failed to establish th at the second condition has been met. Additionally , I find merit in Mr. Mpogole’s contention that some of the applicants are not among the 30 persons appointed during the meeting of 11 . 07 . 2025. Upon examining the list of the appointed representatives, I have noted that the 7 th , 11 th , 17 th , 18 th and 19 th applicant s in the application are not in the list of the said chosen 30 persons . This discrepancy raises legitimate concerns regarding the accuracy and truthfulness of the averments made in the jo int a ffidavit, particularly the assertion that all the applicants were duly

Page 10 of 11 authorized by those sought to be represented. In the case of Kihila William and 5 Others (supra) , it was held that : “ Since the applicants jointly swore that they all obtained the consent of 741 people sought to be represented while not, and since the name of th e 6 th applicant was not proposed and approved in the meeting convened on 29/11/2021, the said joint affidavit cannot be relied upon ” The principle emerging from that decision is that where a joint affidavit contains material misrepresentations regarding t he authority granted by the persons sought to be represented, the Court may decline to rely upon such affidavit. Similarly, in the present case, some of the applicants are not among the 30 persons appointed during the meeting of 11 . 07 . 2025, notwithstanding the averment in the joint affidavit that all the applicants were duly authorized. This inconsistency casts doubt s on the reliability of the affidavit and the truthfulness of the facts deposed therein. I therefore find it unsafe to rely on th e applicants’ joint affidavit in support of the application, as it contains material inaccuracies regarding the authority of the applicants to institute the intended representative proceedings. On the basis of the foregoing, I hold that the applicants have failed to satisfy the cumulative requirements for the grant of leave to institute a representative suit. Further , the inconsistencies and material inaccuracies contained in the applicants’ joint affidavit

Page 11 of 11 render the said affidavit unrel iable and incapable of supporting the application. Accordingly, the application cannot be sustained and is hereby struck out with costs. Dated and delivered in Moshi on this 09 th day of June, 2026. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA