Bebeshi J:
Mr Lugue, learned counsel filed an application under s 63(1) of the Magistrates Court Act 1984 and also under Order 1 Rule 8, and Order 437 Rule 1(b) and s 95 of Civil C Procedure Code 1966 seeking on behalf of the plaintiffs/applicants the following orders:
(a) that this court grant leave to the applicants to file the suit arising from unsurveyed land at the court of the resident magistrate D
(b) that this court grant leave to the applicants to file a representative suit on behalf of the other applicants
(c) that this court issue an interim injunction restraining the respondents from demolishing, damaging, alienating or disposing of the properties in the suit land E until the matters concerning the said land are adjudicated on merit by the court of law
This application is supported by the affidavit as deponed by one Faraji S Mziray on behalf of the other applicants. F
Appearing on behalf of the respondents of the city council was Mr Eustace learned counsel who submitted before me that he was not challenging the first prayer, that is, applying for leave to have this matter heard by the resident magistrate's court as the applicants had engaged the services of counsel. Mr Eustace however was challenging the second and third prayers. G
Mr Lugue learned counsel on the issue of representation submitted that since there were more that 68 applicants he though it prudent that the three applicants be allowed to represent the rest. In fact he said the law allows representative suits Order 1 Rule 8 of H the Civil Procedure Code 1966. To echo that Mr Faraji S Mziray deponed in his affidavit para two thereto, that the 68 interested persons have appointed Mussa Hamisi Shah, Feraji S Mziray and Lucas Japhet Kija to appear in court on their behalf.
Mr Eustace who was opposed to the prayer submitted that this issue should be I presented before the court that going to try the suit and not this court. I think Mr Eustace is correct. The law allows for
representative suits but such application should be handled by the appropriate court that A will hear the suit, and since I am inclined to grant leave for this matter to be filed at the resident magistrate's court, it would be in order if this application is addressed to the competent court once a suit has been filed. B
Likewise on the third prayer. The court would not at this juncture grant the injunction prayed against the respondents. As I understand the current position is that counsel for applicants after being granted leave by this court will then proceed to file the suit at the resident magistrate's court. Once he has done so, it would therefore be open to him to C apply for the injunction or not. It would, in my view, be rather premature for counsel to ask this court to grant the injunction when the suit has not been filed. In that regard the authority cited before me of Frank Marealle v Paul Kyauka Njau (1) is not relevant here.
In the final analysis, the application succeeds to the extent that only the first prayer is D allowed. The second and third prayers are not allowed.
E
