Jenita Mkete v Kasorokoza

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000024923 OF 2024 JENITA ATANAZI MKETE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS CHIREKEYE KASOROKOZA .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, This is a second appeal by the Appellant, Jenita Atanazi Mkete. Her first appeal before the District Land and Housing Tribunal (DLHT) was not successful, hence this appeal. From the records of the two tribunals below, we gather the following. Some time in 2020 the present respondent lodged a complaint before the Kitagata Ward Tribunal. It related to a dispute over land measuring five (5) acres found in Kitagata village. She accused the appellant of illegally taking over for personal use of their family land. After hearing the parties, the Ward tribunal delivered its judgement on 16th December, 2020. The Appellant was displeased by the decision issued by the Ward Tribunal. She appealed to the DLHT through land appeal No. 14 of 2021. The DLHT after hearing the parties, it found in favour of the respondent. It thus dismissed the appeal. Still disgruntled, the appellant has now knocked at the doors of this court to further pursue her rights. She has lodged a petition of appeal containing five grounds of appeal. They are reproduced here below for ease of reference. 1. That, the 1st Appellate Tribunal erred in both law and fact by declaring respondent herein as the lawful owner of the suit property whilst he had no locus to sue as he claimed the suit property to be the property of his late father one Kasorokoza Kayanda but he sued in the trial tribunal without having letters of administration and he sued on his own capacity. Page. 1 2. That, the 1st Appellate Tribunal erred in both law and fact by declaring respondent as the lawful owner of the suit property while Respondent claim in the trial tribunal on two acres was hopelessly time barred. 3. That, the 1st Appellate tribunal erred in both law and facts by declaring respondent as the lawful owner of the suit property while the evidence on record proved that the respondent’s father was invited unto the suit property by the Appellant’s grandfather the late Mkete. 4. That, the 1st Appellate tribunal erred in both law and fact in quashing the decision of the trial tribunal and declare Respondent as the lawful owner of the suit property while the evidence on record did not prove so on a balance of probabilities. 5. That, the 1st Appellate tribunal erred in both law and fact for failure to scrutinize the cogent evidence as it was adduced by the Appellant which shows that the Appellant is the lawful owner of the suit property. Hence relied upon the weak and flimsy evidence that was adduced by the Respondent and declare him as the lawful owner of the property. When the appeal came up for hearing, neither the appellant nor the Respondent made submissions. They asked the court to consider the pleadings, that is the petition of appeal and the reply and then decide accordingly. In that case therefore, I shall start by examining the grounds of appeal as presented. As far as the first ground of appeal is concerned, the appellant’s complaint is that the appellate tribunal erred both in law and fact by declaring the respondent as the lawful owner of the suit property while she had no locus to sue. According to the appellant, this complaint is predicated on the concern that the respondent had at all material time maintained that the suit land belonged to her late father, Kasokoroza Kayanda, but the respondent sued in her own capacity. As I said, neither of the parties made submissions. Therefore, we have no direct response from the respondent. Nonetheless, I believe we have clear and straight answers and/or explanation from the records of the two tribunals below. But before I provide what appears to be an answer from the records, I wish to point out that this complaint has been improperly raised. It does not seem to have been raised either before the trial tribunal or before the DLHT. It is therefore improper to raise it at this stage while it was never canvassed before the two tribunals below. SeeFarida Mbaraka and Another vs Domina Kagaruki (Civil Appeal No. 136 of 2006) [2006] TZCA 257 (1 January 2006). See also Kennedy Owino Onyachi & Others vs Republic (Criminal Appeal 48 of 2006) [2009] TZCA 48 (22 December 2009); Gandy V Gaspar Air Charters (1956) 23 EACA 139 and Melita Naikiminjal & Another V Sailevo Loibangati(1998) TLR 120. This alone suffices to have this complaint dismissed. But for the sake of completeness, I shall go one step further. A close look of the record of the trial tribunal clearly shows that the respondent sued not in her own capacity, but in the capacity of the administratrix. This is clearly reflected both in the Page. 2 proceedings as well as in the judgement of the trial tribunal. The record shows that the respondent testified before the trial tribunal on 4th November, 2020. She is quoted telling the trial tribunal the following: “Mimi Chirekeye Kasokoroza nimekuja kulalamika kama msimamizi wa Mirathi ya marehemu baba yetu, kwani baba yetu aliacha mashamba ekari tano (5) na huyu Jenita Atanazi amevamia…”[ Bold supplied for emphasis]. From that opening statement of the respondent before the trial tribunal, it is patently clear that she did not sue in her own capacity but in the capacity of the administratrix. The judgement of the trial tribunal also clearly reflects it at the very first page, where it reads: Katika shauri hili lililosikilizwa tarehe 4/11/2020, mlalamikaji ndugu Chirekeye Kasokoroza, alilieleza Baraza la Ardhi la Kata kuwa yeye ni msimamizi wa mirathi ya marehemu baba yao Kasokoroza. [Bold supplied for emphasis]. But again, even the DLHT in its judgement, it found in favour of the respondent not in her personal capacity, but in her capacity as an administratrix. This is reflected at the last page of the judgement where it is stated: “Eneo lote la mgogoro litaendelea kumilikiwa na na familia ya Kasokoroza Kayanda chini ya usimamizi wa mjibu rufani, Chirekeye Kasokoroza.” It must be noted that before Ward Tribunals, parties do not present pleadings. They only state their complaints and some one reduces the same in writing. That is why, I think, the documents of the two tribunals below are do not show on their face that the respondent sued in the capacity of an administratrix. Nonetheless and as I have demonstrated above, there is no doubt that the respondent did not sue in her own capacity, but as an administatrix. With all this in place, it is apparent that the complaint in ground one is baseless, the same is dismissed. In the second ground, it is complained that the DLHT erred both in law and in fact by declaring the respondent as the lawful owner of the suit property while the respondent’s claim before the trial tribunal on two acres was hopelessly time barred. Once again, before I embark on determining the issue of limitation as raised in this ground, I wish to put a few things in their proper perspective. First of all, the issue of limitation is improperly raised. It was never canvassed before the two tribunals below. It must therefore be dismissed on that ground Page. 3 alone. See Melita Naikiminjal & Another V Sailevo Loibangati (supra). Secondly, the wording of this ground shows that the DLHT declared the respondent as the lawful owner of the suit property. But as I demonstrated earlier while discussing ground one, we have no such holding by the DLHT. The judgement shows that the DLHT found and held that the suit land belonged to the family of the late Kasokoroza Kayanda, and not the respondent as alleged by the appellant. As for the issue of limitation, I must confess that since there was no elaboration, it may not be easy to tackle it. But assuming that the appellant is speaking of limitation in the context of prescription, yet this too does not assist the appellant. This is because according to the evidence on record all the people on the suit land lived peacefully until 2016 when the appellant is said to have trespassed over the suit land. Thus, from 2016 to 2020 when the respondent referred the matter to the Ward Tribunal, is a period of only four years. It cannot therefore be said that the action was barred by limitation. For these reasons, ground two is also baseless. It is bound to fail, and so it does. Grounds 3,4 and 5 all relate to matters of evidence. The appellant complains that the decision of the two tribunals below were founded on weak evidence of the respondent as opposed to her strong evidence. I wish to say from the outset that I do not find merit in these grounds. Both the Ward Tribunal and the DLHT made concurrent finding that there was no evidence to show that the late Kasokoroza Kayanda was an invitee on the suit land. In addition, it is important to note that apart from hearing witnesses, the Ward Tribunal also visited the locus in quo. It saw the land in dispute together with all its boundaries as reflected in the sketch map forming part of the proceedings of the trial tribunal. The question then is, are there any reasons entitling me to fault the concurrent finding on those matters of fact? The answer is certainly on the negative. The rule of thumb is that, in a second appeal, the appellate court will not interfere with concurrent findings on matters of facts by the two courts below. In Mohamed Said vs Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019) the Court of appeal had this to say when considering a similar situation: We are not losing sight of the fact that this is a second appeal and as a general rule we may not interfere with the concurrent findings of facts by the two courts below. See also Simon Kichele Chacha vs Aveline M. Kilawe (Civil Appeal No. 160 of 2018) [2021] TZCA 43 (26 February 2021). Interreference by the second appellate court can only be done where it is clearly shown that there has been a misapprehension of evidence, miscarriage of justice or violation of some principle of law or procedure. In Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs. A.H Jariwalla tla Zanzibar Hotel Page. 4 [1980] T.L. R 31 the Court of Appeal also addressed a similar situation and had this to say: "Where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule of practice should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, miscarriage of justice or violation of some principle of law or procedure." In the present matter, I see no any misapprehension of evidence or any violation of some principle of law or procedure. For that reason, therefore, I shall refrain from making interference with the concurrent finding by the two tribunals below on issues of facts, specifically on the fact that there was no evidence to show that the late Kasokoroza Kayanda was an invitee on the suit land. With that finding in place, I feel fortified to hold that grounds 3,4 and 5 are also baseless for the reasons stated. They are accordingly dismissed. In the final analysis and for the reasons clearly stated, I find and hold that the appeal is wanting in merit. It is accordingly dismissed in its entirety. The respondent shall have her costs. Dated at KIGOMA this 9th of April 2025 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 5