LAND APPEAL FLAVIA MTUNDA CHACHA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY

AT MUSOMA LAND APPEAL NO. 00006913 of 2024 CASE REFERENCE NO. 202403281000006913 (Arising from Misc. Land Application No. 48 of2023 at District Land and Housing Tribunal for Mara at Musoma) FLAVIA MTUNDA CHACHA........................................... ^APPLICANT

VERSUS ELIZABETH NYANJIGA MUGUNDU............................. RESPONDENT

RULING if & if August, 2024 M. L. KOMBA 74(2) Notwithstanding the provisions of subsection (1), and subject to subsection (3), no appeal shall He against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate's Court or any other tribunal, unless such decision or order has effect of finally determining the suit. • The above provision of the Civil Procedure Code Cap 33 R.E 2019 confused the two learned brothers and decided to seek for interpretation before this Page 1 of 5 court. Mr. Onyango Otieno who was representing the appellant was objected by Mr. Emmanuel Werema to pursue his appeal on the ground that the order subject to the appeal did not finally determine the matter on the truth that the trial tribunal struck out the application which was preferred under wrong provision of the law. Mr. Onyango insisted he has right to appeal as the application which was struck out was preferred under correct provision of the law and if he was to file fresh application, he could not have other provision to move the tribunal. Further he contended that the order of the tribunal determined the matter to finality as the presiding chairlady curtailed his right to appeal. Mr. Werema insisted that the order did not determined the matter because what was struck out was application for restoration of an appeal and not an appeal,

while praying this court to read definition of the suit which is provided under section 2 (1) of the law of Limitation Act, Cap 89. It was his position that application No. 48 of 2023 was not a suit fit to be appealed. Counsel urged this court to read Augustino Masonda vs Widmel Mushi, Civil Application No. 383/13 of 2018 and find interlocutory decision is non-appealable as it does not determine the matter to finality. Page 2 of 5 Mr. Onyango resisted the objection claiming he is in the right track as the order by the tribunal affect the decision in appeal as it determine the right of the parties. What was not registered in minds of the dual counsel is the use of word struck out which was written in Kiswahili language in the ruling subject to this appeal. When counsel for appellant filed an application seeking restoration of the dismissed appeal, Hon Chairlady ruled that; 'Baraza hili iinaona kuwa ni kweii maombi haya ni mabaya kisheria kama aiivyoeieza wakiii wa mjibu maombi wa kwanza hivyo maombi haya yanafukuzwa kwa gharama.' In unofficial translation part of the ruling is that the application was bad in law and it was struck out. The issue for determination now by this court is what remedies available when the matter is struck out. The struck out has been clarified in an East African case of Ngoni- Matengo Cooperative Marketing Union Ltd vs Alimahomed Osman (1959) EA 577 at

page 580 where the Court of Appeal quote with approval in Cyprian Mamboleo Hizza vs Eva Kioso & Another (Civil Application 3 of 2010) [2011] TZCA 40 (28th March, 2011) when compared to dismiss to mean; Page 3 of 5 This court, accordingly, had no Jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to "strike out" the appeal as being incompetent, rather than to have "dismissed" it: for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable ofbeing disposed of. That means struck out is the remedy when the matter is not determined to finality and it is struck out so as to allow the party to file a proper suit/application depend on the matter. I find there is no way the matter can be said to be determined to finality when the last order is struck out. The remedy under that circumstance was to re file the matter after correction of the errors and not to appeal. As of now, I join hand with the submission by Mr. Werema that fate of the parties was yet to be determined by the trial tribunal and therefore there is nothing to appeal as the available remedy was re filing the application at the same tribunal. Reiterating what was envisages under section 74 of Cap 33 is that if the

matter was not determined to finality no one can appeal. Page 4 of 5 I find the objection raised by Mr. Werema is meritorious on sense that struck out order did not determine the matter to finality hence it was wrong for the appellant to file this appeal. During hearing parties argued both Preliminary Objection and the appeal. After the above analysis which was done as per instruction of the Court that PO has to be determined first as was in Khaji Abubakar Athumani vs. Daudi Lyakugile TA D.C Aluminium & Another, Civil Appeal No. 86 of 2018, See also Domonic Ishengoma vs Managing Director, Geita Gold Mining Limited (Civil Appeal No. 541 of 2020) [2024] TZCA 554 (12th July, 2024). Basing on above analysis, the PO has been sustained and therefore, I find there is no need to venture in the only ground of appeal by the applicant. This appeal is bad in law and is hereby dismissed. M. L. KO MBA

JUDGE 19th August, 2024 Page 5 of 5