Kenyata Naimudu and Others vs Tanzania Conservation Limited and Others (Land Case No 22172 of 2024) [2025] TZHC 8578 (18 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) AT ARUSHA LAND CASE NO 22172 of 2024 BETWEEN

1. KENYATA NAIMUDU
2. ELIAS KISUSWA
3. MATHAYO KOI SI KIRI POYA AND 141 O T H E R S ..................... PLAINTIFFS AND TANZANIA CONSERVATION LIMITED.........................................1 st DEFENDANT TANZANIA BREWERIES LIMITED...................................................2 nd DEFENDANT COMMISSIONER FOR LAND ......................................................... 3 rd DEFENDANT NGORONGORO DISTRICT COUNCIL........................................... 4™ DEFENDANT ATTORNEY GENERAL..................................................................... 5™ DEFENDANT RULING 23/10/2025 & 18/12/2025 MWENDA, 3 .: The plaintiffs herein filed a suit against the defendants seeking for the following reliefs: i. A declaration that the Plaintiffs are the lawfully owners of the suit land. 1 | P a g e

ii. A declaration that the 2n d defendant had no legal title to sell and or pass the land to the 1st defendant iii. A declaratory order that the 1st defendant is a trespasser to the plaintiffs' property. iv. A declaratory order that the 1st defendant to immediately vacate from the Suitland. v. A declaratory order that the transactions of transferring the land in dispute made by the 1st ,2nd, 3rd and 4th Defendants are illegal. vi. An order to permanently restrain the defendants, their agents, assignees, workmen and whoever is working on their directions or orders from interfering the plaintiffs in the peaceful possession of their properties. vii. General Damages to be assessed by this honorable court. viii. Costs of the suit to be paid by the Defendants. ix. Any other relief(s) that, the court may deem fit to grant. However, prior to the hearing of the main case the learned counsel for the 1st defendant raised a preliminary point of objection to wit: i. The suit is res-judicata to the decision of the Honourable Court in Land Case No. 26 of 2013 (pleaded in paragraph 21 of the paint)

which decision, conclusively determined the question of ownership of the disputed land amongst others and remains intact and unchallenged to the date herein; And further, the learned state attorney for the 3rd, 4th and 5th Defendants also raised the following preliminary points of objection, that: ii. The Honourable Court is functus officio to deal with the suit; iii. The suit is hopelessly time barred as pleaded in paragraph 27 of the plaint, the Plaintiffs allege to have been evicted from the disputed land in the year 2006; and Principally, once a preliminary point of law is raised, courts are enjoined to determine it first before delving on merits of the case. That was the position in this matter where on the hearing date, Mr. HAMIS MKINDI, learned counsel appeared for the Plaintiffs whilst Mr. SINARE ZAHARAN, learned counsel represented the 1st defendants, Mr. DANIEL LYIMO, learned counsel represented the 2nd Defendant and Mr. MASUNGA KAMIHANDA, learned Senior State Attorney, represented the 3rd, 4th and 5th defendants. By consensus, it was agreed the hearing to proceed by way of written submission.

Submitting in support of their 1st point of objection, Mr. Kamihanda had it that the suit is hopelessly time-barred. He said that under Item 22, Part I of the Law of Limitation Act, Cap. 89 R.E. 2023, the time limit to file suits for recovery of land is twelve (12) years. According to him, in the present suit, the cause of action arose in 2003, 2004, and 2006, yet the Plaintiffs filed the suit in 2024, over 18 years later. He challenged the Plaintiffs' attempt to rely on the withdrawal of Civil Appeal No. 334 of 2017 as invalid since they were not parties to the prior cases and ought to have filed application for a revision. He cited URU CENTRAL COOPERATIVE SOCIETY LIMITED VS LAITOLYA TOURS & SAFARI LIMITED, CIVIL APPEAL NO. 204 OF 2020 which held that a land claim filed after 18 years is time barred. He then concluded that the suit is barred and should be dismissed with costs. Regarding the second point of objection, Mr. Masunga submitted that this Court is functus officio as it has already adjudicated the issue of abandonment in Land Case No. 26 of 2013 ("SUKENYA 02"). He pointed out that in that case, the Court held that the 1st Defendant had not abandoned any part of the land since there is evidence of a continued cultivation, maintenance and guarding of the property. He maintained in that since the Plaintiffs' claim relies entirely on abandonment, this issue has already been

determined and this Court cannot re-open it. Based on this reasoning, he prayed for this suit to be dismissed in its entirety with costs. On his side, Mr. Lyimo also submitted that this suit is res judicata under Section 9 of the Civil Procedure Code (Cap. 33 R.E. 2023). That the same parties, subject matter and cause of action were previously litigated in Land Case No. 26 of 2013 before this Honourable Court, the matter whose decision remains unchallenged. He added that the doctrine of res judicata as reinforced in ZUBER PAUL MSANGI VS MARRY MACHUI, CIVIL APPEAL NO. 316/2019 (2022) TZCA 653 and GAITAN LUCAS SANGA VS HABIBA ALLY, LAND CASE NO. 5581/2024 bars re-litigation of matters already decided by a competent court so as to ensure finality and, preventing abuse of court processes. Further to that, he contended that having previously adjudicated the same issue to its finality then this Court becomes functus officio. According to him, once a decision has been made and communicated, the Court cannot re open it. To support this position, he cited TANZANIA TELECOMMUNICATION CO. LTD & OTHERS VS TRI TELECOMMUNICATIONS TANZANIA LTD, CIVIL REVISION NO. 62 OF 2006, and GLENRICH TRANSPORTATION LIMITED VS ADILI AUCTION MART LIMITED AND OTHERS, CIVIL CASE NO. 127/2023.

He stressed in that given the fact that the parties, subject matter and the court are the same while no appeal has overturned the prior judgment, this Court is functus officio and should not entertain the suit. He then concluded by praying this suit to be dismissed. On his side, having received the copies of written submissions in support of the preliminary points of objection, Mr. Mkindi responded to them collectively as follows. At the outset, he faulted the competence of the 2n d Defendant's Written Statement of Defense (WSD) containing the objections for being filed beyond the statutory period without seeking a proper extension of time under Order VIII rule 3 of the Civil Procedure Code (Cap. 33 R.E. 2023). He opined that this court lacked jurisdiction to allow the WSD to be filed out of time. While citing authorities such as TANZANIA HARBOURS AUTHORITY V MOHAMED R. MOHAMED (2003) TLR 76, and SAVOI V NATIONAL PROSECUTING AUTHORITY (2021) 2 ALL SA 578 he submitted that the WSD should be expunged, rendering the 2n d Defendant's preliminary objections legally untenable.

On the point of objection alleging the suit res judicata, he submitted that the same cannot stand since the 2nd Defendant failed to provide the pleadings, issues or copy of judgment from Land Case No. 26 of 2013 to substantiate the claim. He referred this court to the decision by the Supreme Court of India in SMT. V. RAJESHWARI VS T.C SARAVANABAVA (2004) 1 SCC 551 and the Court of Appeal of Tanzania in MUKISA BISCUIT MANUFACTURING V WEST END DISTRIBUTORS [1969] EA 696 which propounded that a preliminary objection based on res judicata requires proof of the previous case's pleadings, issues and judgment. That without such evidence, the Court cannot determine on whether the conditions of Section 9 and 11 of the CPC are met. Based on the said reasoning he concluded that the said preliminary point of objection has no legal foundation. On the point alleging the court is functus officio, Mr. Mkindi submitted that such doctrine does not apply in this matter because this is a new suit filed by different parties claiming under different titles. That functus officio only bars a court from re-opening matters it previously adjudicated. Citing the case of FRANK MASANGYA VS ADVENTINA VALENTINE MSONYI, PC CIVIL APPEAL NO. 10 OF 2022, he stressed that the said doctrine cannot apply

here because once objection on res judicata fails, the objection on functus officio automatically collapses. On the point of objection alleging the suit is time barred, Mr. Mkindi contended that the suit is not time-barred. While making reference to paragraph 30 of the Plaint he pointed out that the cause of action arose on 18th day of February 2022 after the withdrawal of Civil Appeal No. 334 of 2017. Under Section 21(1) of the Law of Limitation Act, Cap. 89, he supported the view that time spent prosecuting a prior proceeding in good faith is excluded in computing time limitation. According to him, since the defendants denied this statutory exemption then, determining time limitation would require factual inquiry which cannot be addressed as a preliminary objection as per decision in a famous case of MUKISA BISCUIT MANUFACTURING CO. LTD V WEST END DISTRIBUTORS LTD [1969] E.A 696 To conclude, Mr. Mkindi said that the preliminary points of objection alleging the suit is res judicata, time-barred and that the court is functus officio cannot stand at this stage. He then prayed for all the preliminary points of objections to be dismissed with costs. 8 | P a g e

In a brief rejoinder, Mr. Masunga, learned Senior State Attorney said the plaintiffs cannot seek refuge under Section 21(1) of the Law of Limitation the reason being that, the Land Case No. 26 of 2013 was not between the plaintiffs and the defendants herein but rather, between Mondolosi Village C ouncil, Sukenya Village Council and Soitsambu village Council vs TBL and Others where the plaintiff lost their case, then appealed to the CAT but such appeal was then withdrawn and had never been refiled again. He then rested by reiterating their previous prayer seeking the points raised to be sustained. Having heard the rival submission from both counsel for the parties, this court will now determine the merit of the raised points of preliminary objection as follows. Starting with a point of objection on time limitation, Item 22, Part I of the Law of Limitation Act, Cap. 89 R.E. 2023 provides a twelve (12) years' timeline within which a party may institute a suit for recovery of land. This position was affirmed by the Court of Appeal in URU CENTRAL COOPERATIVE SOCIETY LTD V LAITOLYA TOURS & SAFARI LTD, CIVIL APPEAL NO. 204 9 | P a g e

OF 2020 which stated that a land claim filed after eighteen years was time- barred. In the present suit, the record is clear that the Plaintiffs' claim is hopelessly time barred. This is gotten from the Plaintiffs' own pleadings which alleged the cause of action arose in 2003, 2004, and 2006 but the present suit was instituted in 2024, far beyond twelve (12) years' time limiation. On his part, Mr. Mkindi tried to impress that the cause of action accrued at the withdrawal of Civil Appeal No. 334 of 2017. This reliance is self- defeating based on the plaintiffs' own claim as appearing in their pleading as indicated above. His further reliance on section 21(1) of the Law of Limitation Act is equally misplaced since that provision applies only where the same party prosecuted earlier proceedings in good faith, which is not the case here. That said this court is of the view that the present suit was filed out of the prescribed time as such, the point of objection in that regard is sustained. Turning to the point of objection that the suit is judicata, the record reveals the present suit offends section 9 of the Civil Procedure Code, Cap. 33 R.E. 2023 as the matter directly and substantially in issue has already been heard and finally determined by a competent court in Land Case No. 26 of 2013 10 | P a g e

(SUKENYA 02). Such decision remains unchallenged after the withdraw of the appeal before the court of appeal thus, the Plaintiffs cannot circumvent the doctrine of res judicata by re-litigating the same issue under the guise of a new suit or by introducing parties claiming under the same title. In ZUBER PAUL MSANGI V MARRY MACHUI, CIVIL APPEAL NO. 316 OF 2019 (2022) TZCA 653 the court of appeal reaffirmed that res judicata bars re litigation of matters already determined while in GAITAN LUCAS SANGA V HABIBA ALLY, LAND CASE NO. 5581 OF 2024 it emphasized the doctrine's role in preventing abuse of court process and ensuring finality of litigation. Based on the said reasons, this court finds this suit is barred by the doctrine of res judicata and the point of objection in that regard is sustained. Regarding the point of objection that the Court is functus officio, it is apposite to point out that this Court lacks jurisdiction to re-open issues it has already determined to finality in Land Case No. 26 of 2013. Having conclusively determined the issue of abandonment of the suit land, this Court exhausted its mandate on that question and cannot sit on appeal over its own decision. The doctrine of functus officio, as articulated in TANZANIA TELECOMMUNICATIONS CO. LTD & OTHERS V TRI TELECOMMUNICATIONS TANZANIA LTD, CIVIL REVISION NO. 62 OF 2006, bars a court from

revisiting a matter once a final decision has been rendered, save as provided by law. This position was stated in GLENRICH TRANSPORTATION LTD V ADILI AUCTION MART LTD & OTHERS, CIVIL CASE NO. 127 OF 2023. Mr. Mkindi's argument that the doctrine is inapplicable due to alleged new parties is untenable as the parties are litigating under the same title and on the same issue previously determined. Consequently, once res judicata is established, the doctrine of functus officio applies with equal force, and led to the dismissal of the suit for want of jurisdiction. For the foregoing reasons, it is the firm view of this Court that the preliminary points of objection raised have merit and are thus sustained. This suit is hereby dismissed. I make no order as to costs. Ordered accordingly. DATED at ARUSHA this 18th day of December, 2025