Haroon husein Haroon & 9 Others vs cosmos properties limited & 2 others, misc land cas Application no 27352 of 2023.

Mr. Alex Mashamba Balomi, learned counsel, presented the instant application seeking for extension of the temporary injunction order dated 20th April 202 , issued //tfeMisc. Land case Application No. 699 of 2022. The

said order was granted by, this court, Hon. I. Arufani,J with directives thus;

The order ofthe temporary injunction willbe in force for a period of six months from the date of this ruling as provided under XXXVII Rule 3 of the Civil Procedure Code….

This matter was called for necessary orders on 12th December, 202 . Mr. Elisa Msuya and Mr. Gaspar Nyika, learned advocates who appeared to represent the 2nd and rd respondents registered a preliminary objection on point of law thus:-

“This court does not have jurisdiction to hear and determine the application which his incompetentfor want of an injunction to be extended.

I am aware that the court upon application, has the power to extend the period of the injunctive order. This is pursuant to the provision Order XXXVII Rule of the Civil Procedure Code [Cap RE 2019] which states

thus;0 Provided that, the court granting the injunction may, from time to time extend such period for afurther period which in the aggregate shall not exceed one year, upon being satisfied, on the application ofthe holder ofsuch courtinjunction that the applicant had diligently been taking steps to settle the matter complained ofandsuch extension soughtis in the interest of justice, necessary or desirable” [Emphasis

added.

However, for the order of injunction to be extended it must be in existent or valid. In John Joseph Magazeti and 3 others vs Gabrieli Mushi @Gabriel Stephen Masha and 2 others, Misc. Civil Application No. 4 of 2019, my brother at the bench, Hon. Tiganga, J observed that anorder which does not exist cannot be vacated. The same was held by the Court of Appeal of Tanzania in African Trophy Hunting Ltd vs The Hon. Attorney General and 4 others (Supra) that the temporary injunction that has ceased to exist by operation of the law at the expiry of six months cannot be varied.

From the authorities aforecited, it is thus obvious that an order (injunctive order) that has ceased to exist after the lapse of its time to be in force, cannot be vacated, varied or extended. The court is incapable of

extending a non-existing order.

In order for the court to have power under Order XXXVII Rule of the Civil Procedure Code, (Supra) to extend the period of injunctive order, application to that effect must be preferred before the said order ceases to exist. The present application was lodged at least a month from the date

the order became invalid.

Therefore, the application is incompetent for it seeks to extend a non-existing order.

In the final analysis, I find merits in the Preliminary Objection. I uphold it and proceed to strike out the entire application with costs. Order accordingly.