Solomoni Njiku Kasenya vs Salumu Mtinda and Others (LAND CASE NO: 3463 OF 2026) [2026] TZHC 2926 (22 May 2026)

HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND CASE NO: 3463 OF 2026 SOLOMONI NJIKU KASENYA (Administrator of the estate of Limu Duhia ) ..................................... PLAINTIFF VERSUS SALUMU MTINDA .................................................................................................. 1 st DEFENDAN SALUM MTINDA (Administrator of the Estate of Mtinda Mjungu) ..... 2 nd DEFENDANT MUSTAPHA SALUMU ............................................................................................ 3 rd DEFENDAN MTINDA SALUMU ................................................................................................. 4 th DEFENDAN JUMANNE MTINDA ............................................................................................... 5 th DEFENDAN ZUBERI SALUMU ................................................................................................... 6 th DEFENDAN ZUBERI JUMANNE ................................................................................................ 7 th DEFENDAN ASHIMU SALUMU ................................................................................................. 8 th DEFENDAN ABDALA MTINDA .................................................................................................. 9 th DEFENDAN HAMISI MTINDA ................................................................................................ 10™ DEFENDAN ABDALA A. MJUNGU ........................................................................................... 11™ DEFENDANT JUMANNE A. MJUNGU ........................................................................................ 12™ DEFENDAN MGAMBO MJUNGU .............................................................................................. 13™ DEFENDAN JUMA A. MJUNGU ............................................................................................... 14™ DEFENDAN JUMA ALLY MIMU ............................................................................................... 15™ DEFENDAN JACKSON IKIMBIA ............................................................................................. 16™ DEFENDANT DEBORA JACKSON .............................................................................................. 17™ DEFENDAN DEVI JACKSON .................................................................................................... 18™ DEFENDAN BARAKA JACKSON .............................................................................................. 19™ DEFEND MESHACK JACKSON .......................................................................................... 20™ DEFEND JULIUS IKIMBIA ........................................................................... 21 st DEFENDANT Page 1 of 11 MUBILA IKIMBIA ........................................................................... 22 ND EFENDANT WILLIAM IKIMBIA ..................................................................... 23 RD DEFENDANT RASHIDI NTANDU ...................................................................... 24™ DEFENDANT STEPHANO ERASTO ................................................................... 25™ DEFENDANT WILSON ERASTO ........................................................................ 26™ DEFENDANT MARKO NTANDU ........................................................................ 27™ DEFENDANT MAMA DEBORA ........................................................................... 28™ DEFENDANT IDDY RAMADHANI MAKIYA ...................................................... 29™ DEFENDANT SALUMU RAJABU NTANDU ........................................................ 30™ DEFENDANT SHABANI SALUMU NTANDU ...................................................... 31^ DEFENDANT IDDY SALUMU NTANDU ............................................................. 32 ND DEFENDANT RASHIDI RAMADHANI MWELA ................................................. 33 RD DEFENDANT WILLIAMU MAKITA .................................................................... 34™ DEFENDANT RULING 16/4/2026 & 22/05/2026 MASABO, J:- The plaintiff, as an appointed administrator of the estate of the late Limu Duhia, has instituted this suit seeking declarations of ownership, eviction orders, injunctive relief, and damages in respect of a farm measuring 665 acres situated at Kisaki Village in Singida Municipality (the suit land). He has alleged that the suit land is part of a larger farm measuring 835.2 acres, which was owned and occupied by the late Limu Duhia since 1940, having inherited it from his father, Duhia Mutigho. It is further averred that the late Limu Duhia's ownership of the suit land was affirmed in several court proceedings, including in Land Case No. 214 of 1955, Civil Case No. 226 of 1987, Civil Appeal No. 59 of 1987, and by the High Court in Appeal Page 2 of 11 No. 7 of 1988. Upon the death of Limu Duhia in 1999, the land remained under the possession and administration of his family until 2018. The plaintiff further alleges that in Miscellaneous Land Application No. 127 of 2016, the 2nd defendant obtained an order for execution in respect of only 200 acres of land. However, instead of taking possession of the said 200 acres, the 1 st and 2 nd defendants entered and occupied 665 acres of the estate land and subsequently permitted the 3 rd to 34 th defendants to enter, cultivate, and graze livestock thereon. The plaintiff contends that the execution proceedings were founded on misrepresentations and the ruling in Miscellaneous Land Application No. 127 of 2016 was later quashed by the High Court in Land Appeal No. 54 of 2017. Despite the High Court decision, the defendants are alleged to have remained on the disputed land and continued to interfere with the estate's possession and use thereof. Hence, the present suit in which the plaintiff is seeking a declaration that the disputed 665 acres belong to the estate of the late Limu Duhia, an eviction of the defendants and all persons claiming under them, a permanent injunction, general and punitive damages, interest and costs. Upon being served, the 1 st to 27 th defendants, represented by Mr. John Chigongo, learned advocate, filed a joint written statement of defense accompanied by a notice of preliminary objection based on one limb, to wit: that, the plaint is bad in law and fact for non joinder and misjoinder of parties contrary to Order I Rule 3 of the Civil Procedure Code [Cap 33 R.E 2023]. Hearing of the preliminary objection proceeded in writing. In support of the preliminary objection, Mr. Chigongo submitted that this case stems from Land Case No. 12742/2025, which was withdrawn by the plaintiff after the 1 st defendant had raised an objection for non-joinder of parties. This court ordered the plaintiff to Page 3 of 11 conduct due diligence to identify all the people who have encroached on the suit land and sue all of them in their capacity. That included consulting the local village government for Kisaki village for assurance of the people therein after the Kisaki Village Executive Officer had notified the court of the presence of many people resident in the disputed land. In disobedience, the plaintiff did not implead all the 30 persons listed in a letter by the Village Executive Officer dated 22 nd October 2025 as current dwellers of the suit land. None of these was sued, save for members of the Mjungu family. He argued that for the final determination of the dispute, it is crucial that all the listed persons be impleaded, else the court will be assuming a risk of issuing a non-executable decree. On the second limb, the learned counsel, referring to the 28 th defendant, submitted that the name used, that is, "Mama Debora", is not an actual name. It is an alias name. He then argued that this anomaly is fatal as it means that this defendant was not fully identified, and it is a technical misjoinder which must be cured. Fortifying his argument, Mr. Chigongo submitted that the two anomalies above offend the provision of Order I Rule 3 of the Civil Procedure Code [Cap 33 R.E 2023] that mandates the joinder of all the necessary parties. On the consequences for non-joinder and misjoinder, it was argued that, principally, a suit shall not be defeated by reason of misjoinder of parties, save where the misjoinder is of a necessary party which renders the suit incompetent and liable to be struck out, as held in Obed Suleman Kimanga vs Ashraf Omary and 7 Others (Land Case No. 8551 of 2025) [2025] TZHCLandD 627 TANZLII and Mohamed Hassan Kangambili vs Tanzania Nyanza Roadworks (Land Case No.225 of 2023) [2025] TZHCLandD 775 TANZLII. It was Page 4 of 11 summed up that the non-joinder of the necessary parties herein has rendered the suit liable to be struck out. Thus, it should be struck out with costs. The plaintiff firmly objected and submitted that the preliminary objection is premised on the two main issues, namely, whether there is a misjoinder or non joinder of the parties and whether the alleged misjoinder/non-joinder has rendered the suit incompetent. On the first issue, citing the decision of the Supreme Court of Uganda in Departed Asians Property Vs Jeffer Brothers Ltd (1999) EA 55, he argued that there is a clear distinction between the joinder of a normal defendant and the joinder of a necessary defendant understood as a defendant and the joinder of the whose presence before the court was necessary for it to effectively and completely adjudicate upon the question involved in the suit. Moreover, citing an Indian case of Benares Bank Ltd vs Bhagwandas A.I.R (1947) ALL 18, it was argued that the tests for determining whether a party is a necessary party to the proceedings are as follows. First, there has to be a right relief against such a party in respect of the matters involved in the suit, and second, the court must not be in a position to pass an effective decree in the absence of such a party. With respect to the facts of the present case, it was argued that the persons not joined are not necessary parties as the plaintiff's allegations are for actual trespass committed by the defendants and the relief is sought against such defendants without attributing any wrongful act to the other occupants. And, in that respect, the court is fully capable of conclusively determining the dispute and granting appropriate relief in the absence of those other occupants because, as per the facts, the 1 st defendant and 2 nd defendant trespassed on 19/12/2018 and later on, Page 5 of 11 when the land was under their possession, they invited and permitted the 3 rd to 34 th defendant to trespass into it. The assertion that there was a court order for joinder of all the people listed in the VEO's letter was sternly objected to, and it was submitted that the court ordered the plaintiff to carry out due diligence to ascertain the proper defendants. The plaintiff, having conducted due diligence, discovered that the defendants before this court are the only persons who have trespassed on the 665 acres out of 835.2 acres of the late Limu Duhia's land. The plaintiff, being the administrator of the late Limu Duhia, has no cause of action against the people asserted by the defendant. Thus, there is no nonjoinder of any necessary party. Regarding the name of the 28 th defendant, it was argued that, while it is true that the name of Mama Debora ought not to have been used in isolation as it is an alias, not an actual name, there is no misjoinder. Misjoinder would only arise if the person joined as a defendant is neither a necessary party nor a proper party and his joinder is therefore, contrary to Order I rule 1 and 3 of the Civil Procedure Code, Cap 33 R.E 2023. In fortification, the case of Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 TANZLII was cited. It was submitted further that the plaintiff, as dominus /ids, is at liberty to choose whom to sue. He cannot be compelled to institute proceedings against a person with whom he has no cause of action, as held in Santana Fernandes vs Atjan and Sons & 2 Others 1961 EA 693, and CMA CGM (Tanzania) Limited vs Insignia Limited (Mise. Commercial Application No. 168 of 2016) [2017] TZHCComD 4 TANZLII . Since the plaintiff has no cause of action against the other Page 6 of 11 31 occupants and no relief is sought against them, the preliminary objection cannot be sustained. In the alternative, it was submitted that the misjoinder, if any, does not render the suit incompetent as Order I rule 9 of the Civil Procedure Code expressly provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. And, as held in Hamis Kizega Vs Lither Kanyanga And Others, Land Appeal No. 132 OF 2021 TZHC 15830, non-joinder is only fatal where the matter cannot be maintained without joining the omitted party. Further, while citing the provision of Order I Rule 10(2), it was submitted that the misjoinder can be cured by removal and substitution of the parties through an amendment permissible at any stage of proceedings. Thus, should the court find that a misjoinder exists, it can order an amendment to rectify it. In rejoinder, it was submitted that the preliminary objection is with merit and that, by admitting that he has deliberately chosen not to sue other persons who occupy the suit land, the plaintiff has conceded to the objection. It was reiterated that since the suit originates from Land Case No. 12742 of 2025, which was previously withdrawn due to non-joinder, and the court ordered the plaintiff to do due diligence by joining the 31 persons identified by the Kisaki Village Executive Officer, the plaintiff ought to oblige by impleading them as they are necessary parties and their absence renders the suit incurably defective, as ownership of the land cannot be conclusively determined without their inclusion. It was further reiterated that the use of an alias name, "Mama Debora," for the 28 th defendant constitutes a misjoinder. Page 7 of 11 Having carefully considered the rival submissions, I now move on to determine the preliminary objection. The objection raises two crucial issues, namely whether there is a misjoinder and/or non-joinder of parties and, second, whether the misjoinder and/or non-joinder has rendered the suit fatally defective. Order I Rule 3 of the Civil Procedure Code, on which the preliminary objection is premised, states that: "All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise." In essence, this rule permits joinder of defendants so that disputes arising from connected facts or issues may be conveniently determined in one proceeding. Luckily, the joinder and non-joinder of the defendants as set out in the provision above have been a common ground of litigation and so are its consequences as provided for under Order I rule 9 of the Civil Procedure Code. As held in Abdulratif, a non-joinder occurs ".. where a person, who is necessary or proper party to a suit, has not been joined as a party to the suit. ” It is now settled in our jurisdiction that, when dealing with the issue of non-joinder, a distinction must be made between a proper party and a necessary party, as their non-joinder attracts different consequences. Highlighting this distinction in Abdulatif Mohamed Hamis vs Mehboob Yusuf Othman & Another (supra), the Court of Appeal, reckoning the position in our jurisdiction and in foreign jurisdiction, held thus: Thus, over the years, courts have made a distinction between necessary and non-necessary parties. For instance, in the case of Page 8 of 11 Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55, the Supreme Court of Uganda held that there was a clear distinction between the joinder of a party who ought to have been joined as a defendant and the joinder of one whose presence before the court was necessary for it to effectively and completely adjudicate upon the questions involved in the suit (in this regard, the Court had considered and adopted the English case of Amon v Raphael Tuck and Sons Ltd [1956] 1 All ER 273)." Regarding the determination of whether the non-joined party is a necessary party or a proper party, the Court, citing with approval a persuasive authority in the Indian case of Benares Bank Ltd. v. Bhagwandas, A.I.R. (1947) All 18, held thus in determining whether a particular party is a necessary party to the proceedings the court must consider whether there is a right of relief against such a party in respect of the matter at issue and whether the court would not be in a position to pass an effective decree in the absence of such a party. Concluding, it held thus: " ..... a necessary party is one whose presence is indispensable to the constitution of a suit and in whose absence no effective decree or order can be passed. Thus, the determination as to who is a necessary party to a suit would vary from a case to case depending upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non-joined party, the nature of relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed." Page 9 of 11 In the instant case, the issue of nonjoinder is based on the argument that the 34 defendants herein are not the sole occupants of the suit land, a fact not disputed. But, apart from alleging that there are other persons occupying the disputed land, the defendants have not specifically demonstrated who among those persons are necessary parties , what legal interest such persons has in the subject matter, or how their absence would render any decree of this Court ineffective or incapable of execution. Mere occupation of portions of the land does not, by itself, make a person a necessary party unless it is shown that no effective relief can be granted in their absence. As this has not been demonstrated, the first limb of the preliminary objection is misconceived and cannot sail. Concerning the actual name of the 28th defendant, which is the subject of the second limb of the preliminary objection, I entirely agree with the defendants counsel that the name "MAMA DEBORA" is not an actual or legal name of a person, but a common appellation or alias by which a person is ordinarily known in the community. While such a description may be useful for informal identification, it does not provide the court with a sufficiently certain and verifiable identity of the person intended to be sued. Court proceedings are instituted against legal persons whose identities must be clearly and accurately stated to enable effective service of process, proper participation in the proceedings, and eventual enforcement of any decree that may be issued. Where a party is described only by a nickname or alias, without disclosure of his or her actual name, the court is left uncertain as to the true identity of the person before it. This uncertainty may lead to confusion as to whether the correct person has been sued and served, and may create serious difficulties at the stage of execution should judgment be entered against such a person. Page 10 of 11 In the foregoing, I am of the considered view that the use of the name "MAMA DEBORA" constitutes an anomaly as it amounts to a misdescription of a party. It is not a misjoinder as purported by the defendants' counsel. It is a procedural irregularity that must be rectified by amendment so that the actual name of the intended defendant is properly stated before the matter proceeds further against her as per Order I rule 10(2) of the CPC. The preliminary objection partially succeeds to the extent above. Leave is granted to the plaintiff to amend the plaint by providing the actual name of the 28 th Defendant. The costs shall be shared. DATED and DELIVERED at DODOMA, this 22 nd day of May 2026. J.L. MASABO JUDGE Page 11 of 11