Date of The Last Order: 08.12.2021 Date of Judgment 17. 12.2021
Date of The Last Order: 08.12.2021 Date of Judgment 17. 12.2021
Date of The Last Order: 08.12.2021 Date of Judgment 17. 12.2021
(LAND DIVISION)
AT PAR ES SALAAM
VERSUS
JUDGMENT
A.Z.MGEYEKWA, J
the Defendant The Plaintiff is claiming in 2002 she and the late
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through joint efforts bought the suit land from the administrator of the
estate of the late Tryphon Zuma Kajumla appointed by the court under the
name of Grace Kajumla. The Sale of Agreement was prepared and they
made a full payment whereas the vendor, Grace Kajumla handled over all
which the Plaintiff and his family are living in there. On 15th June, 2007
they started to process the transfer of the suit land and they submitted all
finalize the process. The Plaintiff claimed that they developed the suit
land without any interruption from anybody and they have been paying
taxes. On 16th March, 2020 the Registrar of title informed them that there
is a transfer process over the suit land carried out by the Defendant,
claiming that he is the new owner and about to obtain a Certificate of Title.
In the Plaint, the Plaintiff prays for Judgment and Decree against the
defendant as follows:-
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a. Declaratory order that the Plaintiffin the is the legal owner of Plot No.
Salaam.
from Grace Kajumla to Defendant is null and void for being done
fraudulently.
the Court rate of 7% from the date of filing of the suit to the date of
judgment and 12% from the date of judgment to the date of final
payment.
e. For any other orders, this Court deems just and fit to award.
f. costs.
filed a Written Statement of Defence and denied the Plaintiffs claims and
urged for this court to declare the Defendant a lawful owner of Plot No.
437 Block G with title No. 41968 located at Kinondoni Municipality within
Dar es Salaam.
It is imperative at the outset to point out that, this matter has also gone
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conducted 1st Pre -Trial Conference. Hon. Madeha, J who tried to mediate
the parties. I thank my predecessors for keeping the records well and on
track. I thus gathered and recorded what transpired at the disputed land
During the hearing of this suit, the Plaintiff was represented by Mr.
was conducted on 10th March, 2020 where the following issues were
late Bartholomew Peter Makaoi against Disuza Kajumla. The Plaintiff told
the court that she married her late husband in 1990 and his husband
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The Plaintiff went on to testify that in 2001 they searched for a Plot to
buy at Mbezi Beach and through a middleman they got Plot No.437 Block
G at Makonde Mbezi Beach near NSSF Flats. One Joseph who was a
caretaker of the plot connected them with Grace Kajumla, the owner. She
was selling the plot to get some money to pay for her children's school
fees. The Plaintiff stated that she bought the suit land at a tune of Tshs.
search in January, 2002 and the lawful owner was Tryphone Kajumla. To
Plot No. 437 Block G dated 17th January, 2002 which was admitted and
late Tryphone Kajumla (Exh.P3) that was issued on 12th August, 1998
proved that Grace Kajumla was married to Bartholomew Peter Makoi. The
The Plaintiff continued to testify that Grace Kajumla told them that they
were two administrators of the estate of the late Tryphone Kajumla; Grace
Kajumla and Vedasto Rutaigwa Joseph who passed away. The Plaintiff
started to develop the suit land and in April, 2003 they moved into their
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residential house where she is residing to date. To substantiate her
testimony she tendered a photo of the house (Exh.P4). PW1 testified that
they started the transfer procedure at the Ministry of Land and she had
some receipts to prove her testimony which was admitted by this court as
exhibit P5. PW1 also tendered a copy certificate of occupancy, which was
Land requesting them to finalize the transfer. The Plaintiff said that they
made several follow-ups to the Ministry, but there was no any reply and
The Plaintiff continued to testify that after the death of her husband she
was stressed, sorting out debt and paying school fees thus she delayed
appear before the local government and was informed that one Disuza
demanded that he is the owner of the suit land. PW1 testified that Disuza
threatened her through text messages. When PW1 was transferring the
ownership she realized that Disuza was also transferring the ownership
concerning Plot No. 437 Block G thus, she lodged a caveat. The Plaintiff
urged this court to declare that her late Husband one Bartholomew Makoi
is the lawful owner of Plot No. 437 Block G located at Mbezi Beach and
she urged this court to order the Defendant to pay disturbance costs.
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When she was cross-examined, PW1 testified that the death certificate
of her husband reads Andrew Makoi Sarikoki and his other name is
Tryphone. She said that she was the one who was paying land rents
(Exh.P4) from 2007 to 2020. PW1 testified that the name still reads Grace
that she was not aware whether the Registrar of Title wanted to issue the
transfer to Disuza.
concerning Plot No.434 Block G, Mbezi Beach. PW2 identified the said
Sale Agreement (Exh.P3) and proceeded to tell the Court that Grace Lilian
Joseph, the co-administrator did not sign the Sale of Agreement. He said
that transfer by legal representative came later thus he only witnessed the
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Sale Agreement. He testified that Vedasto Rutaigwa Joseph passed away
Adelfrida Lekule was the third witness (PW3). She stated that she is
ownership. She said the applicant Grace Kajumla tendered the Original
thus the transfer to the administratrix was registered on 04th June, 2006.
PW3 continued to testify that the Sale Agreement between Grace Kajumla
and Bartholomew Makoi, Transfer Deed Form No.35 from Grace Kajumla
Notification for Disposition, Form No.29 were also submitted to the office
of the Commissioner for lands. PW3 said that the Commissioner handled
the applications but he could not approve the transfer because there was
a need to amend Forms No. 29 and 30 as Grace had filled the said Forms
administratrix of estate.
one must have the following; Original Certificate of Title, Sale Agreement,
Transfer Deed, Form No. 35, Land Form No.29, Notification and Land
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Form No.30-Application for transfer, Valuation Report, taxes receipts, and
On his part, the Defendant had five witnesses, Disuza Tryphone who
testified as DW3 and Waziri Masoud Mganga was the fifth witness (DW5).
During the hearing of the Defence case they tendered the following
late Tryphon Zuma Kajumla, his biological father. He testified that his
father passed away on 01st December, 1997 and after his death, Grace
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estate of the late Tryphone Zuma Kajumla. He testified that Grace
Kajumla passed away on 04th June, 2007, and Vedasto Rutaigwa Joseph
passed away on 17th October, 2016. DW1 testified that after the death of
and Form No.4. DW1 testified that when he wanted to transfer the
ownership of Plot No. 437 Block G Mbezi Beach, he noted that there was
a caveat.
found that the lawful owner was Tryphone Kajumla, he registered his title
deed on 01st July, 1986. He claimed that he paid land rents and taxes.
DW1 testified that the original title went missing thus in 2018 he obtained
a lost report. DW1 testified that Grace Kajumla could not sell the suit plot
since in 2002, she was not appointed to administer the estate of the
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DW1 went on to testify that the transmission is done by the Registrar of
Title. He testified that a party who wants to register must have an original
effected without paying rent. DW1 testified that the Plaintiff claims are
owner of the suit land and he is the legal personal representative of the
late Tryphone Zuma Kajumla. DW1 also prayed for this court to declare
the sale and transfer from Grace Lilian Kajumla to Bartholomew Makoi
Tryphone Kajumla passed away in 1997 when he was eight years old. He
said that Grace Kajumla was the legal wife of his late father. He said that
he was not aware that Grace Kajumla was registered. He testified that as
per the Registrar of Title the one who registered was Grace Kajumla and
she had the power to sell the plot. He testified that he paid land rent in
2005. He testified that the Minutes shows that Grace Kajumla passed
away in 2006 and the death certificate state that she passed away in 2007.
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Rehema Ally testified as DW2. She said that Disuza Kajumla is his
biological son. She testified to the effect that Grace Lilian Kajumla was
late Tryohone Kajumla and she passed away in 2007. DW2 testified that
Grace Kajumla could not sell the suit land without informing her. It was
her testimony that the suit land was not sold thus the lawful owner is
Tryphone Kajumla.
The third Defence witness was Clara Kajumla (DW3) she testified to
the effect that she is the daughter of the late Grace Lilian Kajumla who
The last witness, Waziri Masoud (DW5) testified to the effect that he is
working with the Registrar of Titles, dealing with the registration of title
deeds. He narrated that the registration of title procedure starts from the
a registration fee and check the transfer documents. DW5 testified that in
their office there was no any transfer form in the name of Bartholomew,
Plot No. 437 was registered on 29th June, 1993 and the owner was
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Tryphone Kajumla. DW5 testified that when the applicant is an
issued by the court. In a situation where there are two administrators, one
DW5 continued to testify that if the administrator has two names then
that after the Commissioner for Land issues a certificate of approval, the
Registrar of Titles proceeds with the transfer process. He said that Disuza
Tryphone tendered a lost report dated 20th August, 2018 requesting the
Registrar to issue a new title and he claimed that the title went missing on
13th August, 2018 with the contradictions of dates the Registrar of Titles
could not proceed with the said transfer. DW5 testified that they did not
any claims from Vedasto Rutaigwa Joseph, the 2nd administrator of the
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By the consent of the parties, on 2nd December, 2021 both learned
After having gone through the testimonies and the submissions made
by both parties, let me now turn to the issues as they were framed before
of the disputed plot and whether the contract of sale for the disputed plot
is legal. The Plaintiff is the one who filed this suit before this Court,
therefore she is the one to prove that she is the lawful owner of the
disputed land. The standard of proof was clearly elaborated in the case of
2017 (unreported)
system in which the only values are 0 and 1. The fact either happened
or did not. If the tribunal is left in doubt, the doubt is resolved by a rule
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that one party or the other carries the burden of proof. If the party who
bears the burden of proof falls to discharge it, a value ofOis returned
happened.”
“In the present suit likewise, the plaintiff is anticipated to fully comply
in the sense that, the affidavit in proof of the claim outlined in the
One of the canon principles of civil justice is for the person who
alleges to prove his allegation. Sections 110 (1) & (2) and 112 of the
Evidence Act, Cap.11 [R.E 2019] places the burden of proof on the party
judgment in his favour. Section 110 (1) of the Act provides as follows:-
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"110 (1) Whoever desires any court to give judgment as to any
is said that the burden of proof lies on that person. On whom the
who would fail if no evidence at all were given on either side. The
is provided by law that the proof of that fact shall lie on any other
person.”
To prove that the Plaintiff had an interest in the suit land, she testified to
the effect that she was the administratrix of the estate of the late
However, the name of the deceased in the death certificate reads Andrew
Sarikoki Makoi. The plaintiff in her Plaint claimed that the names were
used interchangeably. She did not tender any affidavit of names or deed
poll.
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The defendant's Advocate in his final submissions argued that by failure
proving that the said names are of one person and should be used
am in accord with the defendant's Advocate that where the person uses
more than one name, there must be evidence to prove that such names
I do agree that in the present case there was no affidavit or Deed Poll
Makoi refer to the same person. However, while going through the oral
evidence adduced by the Plaintiff under oath I noted that she once told
this Court that the said names refer to the same person. I have asked
myself whether it is not enough to believe the said facts stated orally by
It is my firm view that facts stated orally by the witness under oath are
as good as the facts stated in the affidavit or Deed Poll. The only
difference between an affidavit or Deed Poll and the facts stated orally
under oath is that affidavits are written facts made under oath while the
facts adduced orally before the Court are Oral facts made under oath. The
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two, in my firm opinion they carry the same evidential value. I have also
considered the fact that the Plaintiffs is using his late husband's name;
Bartholomew Peter Makoi and Andrew Sarikoki Makoi refer to the same
person.
In the matter at hand, to prove her case, the Plaintiff tendered a letter
transfer (Exh.P6). Both parties do not dispute that the suit land title deed
bears the name of Tryphone Kajumla. The Plaintiff has narrated how the
suit property was acquired by starting from starch when she and her late
husband searched for a plot and met one Grace Kajumla who sold to them
within Dar es Salaam Region. The suit land from the date when they
bought the suit land, it is not the same and it is developed. The Plaintiff
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PW1’s husband passed away on 11th March, 2011, thus, she was
appointed to administer the estate of her late husband on 20th April, 2011.
It is not a disputed fact that the Plaintiffs late husband obtained the suit
land from the late Grace Lilian Kajumla. During and the late Grace Lilian
the Plaintiff instituted this instant case, she was in the process of
transferring the title to her name. Examining the evidence on record and
Zuma Kajumla.
I am in accord with the defendant’s Advocate that the Plaintiff did not
Land (PW3) tendered a copy of the Certificate of Title regarding Plot No.
437 Block ‘G’ Mbezi and confirmed that Grace Kajumla tender an Original
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that the Original Title was in place and was used in the process of
Tryphone Kajumla and the Plaintiff is in the process of transferring the title
as the legal personal representative of the late Tryphone Kajumla had the
title to transfer the said land into his/her name. The same entitles the
“ 67. On the death of the owner of any estate or interest, his legal
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Magistrates' Courts Act shall be entitled to be registered as
Based on the above provision of the law, it is clear that Grace Lilian
vendor, Grace Lilian Kajumla sold the suit land as a legal personal
who argued that, since there were two administrators of the estate of the
late Tryphone Zuma Kajumla, then the sale of the suit land by one
administrator was illegal. They also argued that since the transfer of the
Commissioner for lands failure to approve the transfer, then the Plaintiff
cannot be said to have title over the suit land. It is true that where there is
all administrators. In the present case, only Grace Lilian signed the Sale
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Agreement and is the only person who was registered the Title Deed as
time Grace Kajumla was disposing of the suit land the other administrator
at all there was another administrator and he was not pleased with what
Grace Lilian Kajumla was doing, he could object any transaction done by
Kajumla did.
not consent to the transfer because the vendor had improperly signed
Forms No.29, 30, and 35 and she died before correcting them. It is thus
clear that, the Commissioner did not refuse consent and that if the late
Grace Lilian would have filled the form properly, the transfer of the
the late Grace Lilian Kajumla. In my opinion, the defendant being the
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made by his predecessors. In my view, the defendant ought to have
facilitated the process of transferring the property to the estate of the late
Grace Lilian Kajumla sold the suit plot in the capacity of the administratrix
of the estate of the late Tryphone Zuma Kajumla, then the said Sale
Agreement was and is still lawfully. Failure to transfer the ownership does
not vitiate the fact that Grace Lilian Kajumla sold the suit plot to
Tryphone Zuma Kajumla cannot hold water since the former administrator
of the estate of the late Tryphone Kajumla already been sold the suit land
The learned counsel for the defendant in his final submission contended
that the Sale Agreement was not finalized and thus the sale was not
Commissioner."
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As I have stated earlier, the process of transfer was ongoing which
means Bartholomew Makoi was required to pay Grace Lilian Kajumla the
Now comes the last issue of reliefs to which the parties are entitled. I
must confess that this issue, especially concerning the second prayer, has
taxed my mind greatly. The Plaintiff has, in his first prayer, asked this court
to declare her the lawful owner of the disputed Plot No. 437 Block G with
finds that since the sale was valid it is, therefore, crystal clear that the
interests’ overs the suit plot were sold to Bartholomew Peter Makoi
The Plaintiff also sought for grant of general damages, however during
the trial, she could not adduce evidence to prove damage suffered for the
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The last prayer is about the costs of the suit. The award of costs is in
the discretion of the court as provided for under Section 30 of the Civil
Procedure Code Cap.33 [R.E 2019]. It is a fact that the Plaintiff would not
result, the Defendant acts necessitated the plaintiff to incur costs in hiring
On my part, I think the plaintiff is entitled to the costs of the suit. I shall
demonstrate. The plaintiff has prosecuted this case to its finality and,
certainly, has incurred costs in this endeavour. These are costs involved
in the suit which the Defendant must shoulder and I find no sufficient
reason why the plaintiff should be deprived of the same. In the case of
Lordship stated:
heals every sore in litigation and that is the cost. I have very seldom
medicine".
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In a similar tone, Hon. Othman, J. (as he then was) the foregoing
an identical situation with the following simple but powerful and conclusive
remark:
“Costs are one panacea that no doubt heals such sore in litigations”.
panacea that soothes the souls of litigants that, in the absence of sound
reasons, as is the case in the present case, this court is not prepared to
deprive the Plaintiff of. These are foreseeable and usual consequences of
litigation that the Defendant must shoulder. Based on the foregoing, I find
and hold that the plaintiff is entitled to the costs of this suit.
In the final analysis, the Plaintiff has managed to prove her case. I thus
proceed to enter judgment for the Plaintiff with the following orders:-
1. The suit landed property; Plot No. 437 Block ‘G1 Mbezi Beach area
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2. The suit landed property be registered in the name of Judith
Agreement.
Order accordingly.
Sosten Mbedule, learned counsel for the Plaintiff, and Mr. Simon Mkwizu,
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