IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA
THE SUB-REGISTRY OF MOSHI
AT MOSHI
MISCELLANEOUS CIVIL APPLICATION NO. 3700 OF 2025
HAGAI ELIA MSANGI.…………….…….……..…..….……………..….1ST APPLICANT
AUGUSTINO NGARABA KARUGWE……………………..……………2ND APPLICANT
ENZI ELIYA MSANGI…………………………………………………….3RD APPLICANT
VERSUS
PAULO ELIYA MSANGI ……………………………………………….1ST RESPONDENT
UZIMA ELIYA MSANGI……………………………………………….2ND RESPONDENT
RULING
4th June & 23rd July 2025.
A.P. KILIMI, J.:
This Ruling emanates from an application brought by the applicants
herein praying for leave to file a Representative suit on behalf of 24 others
who have common interests on the intended suit. The application has been
brought by Chamber summons under Order 1 Rule 8(1) of the Civil
Procedure Code Cap 33 RE 2019 and it is supported by the jointly affidavit
of the applicants.
In their jointly affidavit, the grounds advanced thereat are that as per
annexure ‘A2’ in their affidavit, the applicants and 24 other people are
owners of the properties such as Forty nine (49) acres of land which is
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located at Ikongwe hamlet, Thirteen (13) acres of land which is situated at
Chamfuko area on the Western side of Shaka river, Four (4) acres of land
which is found at Mpirani juu area, Six (6) acres of land which is located at
Mpirani chini area, Thirteen (13) acres of land which is at Manyata area,
Twenty four (24) acres of land which is situated at Kitamri-Same area,
Eleven (11) houses worth Tsh, 10,000,000/- each which are found at
Ikongwe A hamlet. One (1) house found at Mahuu- Same Township worth
Tsh. 97,000,000/=, One generator worth Tsh. 5,000,000/= and One grain
milling machine worth Tzs. 5,000,000/=.
They have stated that some of those properties were given to them
in 1981 by Prophet Eliya Abraham Msangi who was their spiritual father
while other properties were obtained through their own collective efforts.
Applicants further stated that the respondents were appointed by Kisiwani
Primary Court as per annexure ‘A1’ to administer the estates of Prophet
Eliya Abraham Msangi who passed away in April 1996. That in the course
of collecting the deceased properties the respondents trespassed the
applicants’ properties by listing them as of the deceased. They have
decided to file this matter so that to prevent the respondents from
distributing the estates wrongly listed as of the deceased estates. They
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stated that because they are numerous in number, the applicants have
been appointed to file a representative suit on behalf of others as per the
minutes meeting annexed as ‘A2’.
Their application was countered with the respondents’ affidavit
resisting the application at hand not to be granted. They stated that the
deceased Eliya Abraham Msangi died intestate and never distributed his
estate to his children or left it to anyone. They further stated that the
deceased only was leading congregations on spiritual growth but the
people he was leading knew nothing about his estates. That there was a
meeting and in attendance the 2nd applicant and 10 others were present
and both agreed that the properties used by believers do belong to the
deceased. The respondents admitted contents in ground number 3, 4 and
6. Other paragraphs were strongly disputed and the applicants were put
into strict proof thereof. The respondent stated that the application at hand
was meritless and ought to be dismissed with costs.
The application was disposed by way of written submissions. On part
of the applicants, they enjoyed the legal service of Mr. Erasto Kamani
learned advocate while the respondents represented themselves as they
had no legal representation.
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Submitting in support of the grounds for representative suit Mr.
Kamani submitted that as per order 8 rule 1 of the Civil Procedure Code, a
person who wants to sue or be sued or defend the suit on behalf of others
shall apply in court for leave to institute representative suit. He said as per
the above order to grant the parties for representative suit first; the parties
applying for representative suit must be numerous and have the same
interest in one suit and the reliefs prayed for must also be the same.
Second; the court must give permission to parties to file the said suit, and
third the parties intended for this suit must be informed. He supported his
stances with the decisions 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 (TanzLII) and Silvanus Kotei and 10 Others vs Dodoma City
Council and Another (Misc. Civil Application No. 56 of 2023) [2023]
TZHC 23152 (TanzLII).
Mr. Kamani further submitted that as per annexure ‘A2’ the parties
who intends to file a suit against the respondents are total of 27 people as
per annexure ‘A2’. That they are owners of the properties listed in item 1(i-
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x) in their jointly affidavit. He further submitted that the respondents being
administrators wrongly listed the applicants’ properties that they belong to
the deceased while it was of the applicants. He said the applicants have
common interest because the reliefs prayed by the applicants as per
paragraph 6 which are restraining orders to the respondents not to
distribute and include the deceased estates into the list of the deceased
estates. Mr. Kamani said that since the applicants were appointed in a
meeting to represent the other applicants as per annexure A2, this court
ought to grant them this application with costs.
Replying the above submissions, the respondents resisted the
applicants’ application and submitted that applicants had no locus stand to
file the suit under representative suit. They said this was because the
deceased Eliya Abraham Msangi died intestate and he never distributed his
properties to his children or to any other person. That the believers and
follower of the deceased were only directed and mentored spiritually and
were given temporarily place to stay including food. The respondent
further argued that the deceased before his death held a meeting with his
congregation and his believers including applicants Number 2 and 10
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others and it was agreed that the properties they used belongs to the
deceased as per annexure ‘WM1’ of the respondent’s counter affidavit.
The respondents emphasised that the applicant lacked locus stand to
file the suit at hand since there was no proof that their rights were violated
in any way. To support their views, they referred the decision Registered
Trustee of Sos Children's Villages Tanzania vs Igenge Charles &
Others (Civil Application No. 426 of 2018) [2022] TZCA 428 (TanzLII), and
submitted that applicants had no locus stand as they have no common
interest as per Order 8 (1) of the Civil Procedure Code. They then prayed
for the dismissal of the application with costs since it has no merits.
Having considered the arguments for and against the application, the
vexing issue calling in for determination is whether the application at hand
has merits. An application for representative suit is governed by Order 1
rule 8(1) of the Civil Procedure Code Cap 33 R.E 2019. The said provision
provides that;
“8.-(1) Where there are numerous person
having the same interest in one suit, one or
more of such persons may, with the permission
of the court, sue or be sued, or may defend, in
such suit, on behalf of or for the benefit of all
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persons so interested; but the court shall in
such case give, at the plaintiff's expense,
notice of the institution of the suit to all such
persons either by personal service or, where
from the number of persons or any other cause
such service is not reasonably practicable, by
public advertisement, as the court in each case
may direct.”
The above provision is clear so does not need interpolations, the
provision sets conditions to be complied for the application to be granted
which are, first, parties must be numerous; second, they must have the
same interest in the suit; third, the permission must have been granted or
direction must have been given by the court; and four, notice must have
been issued to the parties whom are proposed to represent in the suit.
Now to see whether the above conditions suit the circumstances of
this case, according to paragraph 1, 5,6 , 7 and 8 of the joint affidavit , it
evidenced that the applicants seek to represent other 24 persons who have
same interest to protect their properties registered at paragraph one,
further it proves they were appointed as per the minutes which was
annexed at paragraph 7 as annexure ‘A2’ and both are intending to have
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the same cause of action as reflected under paragraph 6 of their joint
affidavit.
From the above evidence, I am settled that the applicants are
numerous, second both have the same common interest to pursue a suit
against the respondents, third they have agreed collectively and appointed
the applicants to represent them. In respect to the contention by the
respondent principally they have averred the reasons which need to be
proved on the intended case to be filed by the applicants, therefore their
argument is like the wanted to discuss on the merit of the cause of action
of the case the applicants intend to institute, therefore what they argued is
like placing a cart in front of the horses, hence premature. Therefore, the
argument by the respondents that the applicants lacked locus stand is
misconceived at this point.
All said and for the foregoing reasons, this Court finds that the
applicants have met all conditions set out under Order I Rule 8 (1) of the
CPC Cap. 33. Consequently, I proceed to grant their prayers sought
forthwith. The applicants should effect a personal service notice of the
institution of the suit to all whom they represent at their expenses. In the
circumstances I grant no order as to costs.
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It is so ordered.
DATED at MOSHI this 23rd day of July, 2025.
X
JUDGE
Signed by: A. P. KILIMI
Court: Ruling delivered today on 23rd day of July, 2025 in the presence of
the second applicant, first respondent and second respondent also
present.
