20060331 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

ATMOSHI (DC) CIVIL APPEAL NO. 16 OF 2003 AND (DC) CIVIL APPEAL NO; 20 OF 2003 CONSOLIDATED) (C/F HOUSING TRIBUNAL APPEAL NO. 28/2001) G.P. RUTACHUBIRW A ---------------APPELLANT

VERSUS

ALFRED MAKUNDI i ~ t. i GENERAL TYRE (E.A) LTD. --------RESPONDENTS . JUDGMENT 0 HON..JUNDU, J. •·., This Judgment determines two consolidated appeals, that is Civil Appeal No. 16 of2003 st filed by 0.P. Rutachubirwa, hereinafter called the 1 Appellant, and Civil Appeal No. 20 of2003 filed by the General Tyre (E.A.) Ltd, hereinafter called the 2nd Appellant. Mr. Alfred Makundi is the first Respondent in both appeals whereas the 1st Appellant is the second Respondent in Civil Appeal No. 20 of2003 and the Second Appellant is the Second Respondent in Civil Appeal No, 16 of 2003. Both appeals arise from the. decision of the Ho~sing ~ppeals Tribunal of Tanzania in Housing Appeal No. 28 of2001 which arose from original Application No. 21 of 1995 of Kilimanjaro . Regional Housing Tribunal. ;,'f The 1st Appellant had leased his premises on Plot No .. 219 A Block 181/182, Moshi (© Municipality to the Second Appellant for a period from 1st November, 1992 to 31 st October, 1994. The First Respondent was an employee of the Second Appellant the latter alloc:1tcd the said premises to the 1st Respondent by virtue of employment\:ontract between the two. ·An employment dispute . I arose between the two afterthe ; Second· Appellant had terminated the services of the. 1st Respondent ' ,'.. -•\ ~ thus the latter filed Industrial Dispute No. 15 of 1993 at the Industrial Court of Tanzania and

also obtained a temporary injunction restraining the second Appellant from evicting him from the said premises until the said Industrial Dispute No. 15 of 1993 had been heard and determined. i · 1 In 199.5, the First Appellant filed RHT Application No. 21 of 1995 at the Regional Housing I Tribunal, Moshi, Kilimanjaro against the Second Appellant seeking interalia, orders for payment of 1 rent arrears and vacant possession of the demised premises and repairs thereof. The said Tribunal entered judgment in favour of the First Appellant but as execution was about to take place the First •1 Respondent applied and obtained an order from the Housing Appeals Tribunal that he be joined in i ! the application hence RHT Application No. 21 of 1995 started de novo - having been amended to include the First Respondent. The industrial dispute at the Industrial Court of Tanzania was disposed on 18/2/1994 in·favour of the First Respondent. However, the Second Appellant did not wish to continue with the First Respondent hence they concluded and executed a Deed of Separation , , P.ackage whereby the Second Appellant paid the First Respondent certain sums of money as ' ! terminal benefits and that the First Respondent was to vacate from the demised premises on or before 31 st November, 1994. The First Respondent did not vacate from the said premises despite receiving full payment under the Deed of

Separation Package and despite the expiry of the temporary i~junction which ended a~ a result of finalization of the industrial dispute between him and the Second Appellant. .' 1 The Regional Housing Tribunal heard the amended RHT Application No. 21 of 1995 in which the Second Appellant and the First Respondent were found liable severally and jointly. The said tribunal granted I eviction order, granted . all claims for payments in sums of 1,500,000/= being compensation for damage caused to the demised premises, shs.4,720,000/= being rent arrears from November, 1994 to June, 1998, shs.400,000/= for water bills, shs.1,287,797/95 being electricity bills and shs. 520,054/40 for telephone bills. It further ordered any respective subsequent bills or charges up to the date of vacant possession of the demised premises, payment ofmesne profits at a rate of shs. 140,000/= per month from July 1998.to the date of judgment and/or till vacant possession of demised premises, payment of Tshs. 2,000,000/= being general damages payment of interest as , per respective rates and dates ofaccrnals as prayed and payment of shs.80,000/= being Applicant's . . expenses/costs .. of hiring a lorry to. return the household I effects of the would be tenant of the ' applicant. Aggrieved by the. s<!.id decision, the First Respondent appealed against it to the Housing Appeals Tribunal of Tanzania in Housing

Appeals No.28 of 2001. He had filed seven (7) grounds of appeal but the said Tribunal only dealt with grounds Nos. 1, 2 and 6. . . Briefly,_ the Housing. Appeals Tribunal in its decision held that the First Respondent could not · , be held liable for the various claims that had been decreed by the RH Tribunal in Application No. 21 I of 1995 because he had no any contn1ctunl relationship with the First Appellant, hence he could not be held responsible for any breaches in the lease agreement between the First Appellant and the 2 Second Appellant. It held that the First Respondent was occupying the demised premises by virtue of his employment with the Second Appellant. 'The said Tribunal further held that the proceedings and the decision of the RH Tribunal were null and void as the latter changed members contrary to the mandatory provision of Section 11 (3) of the Rent Restriction Act No. 17 of 1984. It quashed and set aside the proceedings and the judgment of RH Tribunal in Application No. 21 of 1995. Having been aggriey~d by the decision of the Housing Appeals Tribunal, the First Appellant . . . as well . as the Second Appellant have appealedto this court in the respective Civil Appeals above . . ' . ~.·· . named. In Civil Appeal No. 16 of 2003, filed by the First Appellant, the latter, in his Memorandum of Appeal has listed four (4) grounds of appeal namely, that:- 1. The Housing Appeals Tribunal grossly erred both in fact and in law in entertaining the 1st Respondent's Appeal whereas the same was time barred.

2. The Hou~ing Appeals Tribunal grossly erred both in fact and law in being in disagre~tn~nt with the holding of the Regional Tribunal that since the Respondent was occupying the suit premises by virtue of his employment with the 2nd Respondent, once his employment ceased, his legitimacy for occupation thereof ceased as well.

3. The Housing Appeals Tribunal grossly erred both in law and fact in holding that the Respondent could not be held liable jointly and severally with the 2 nd Respondent under ' the Judgment of the Regional Housing Tribunal.

4. The HousingAppeals Tribunal grossly erred both in law and fact in quashing and setting I . : . aside the proceedings of the Regional Housing Tribunal purportedly on account of lack of jurisdiction. Based on the above grounds of appeal, the First Appellant in his Memorandum of Appeal prayed to o! •j this court to allow the appeal; quash and set asi~e the judgment and the decree of the Housing Appeals Tribunal aµd condemn . the First Respondent . . . to costs in this Tribunal and in the Housing Appeals Tribunal. ·. · The Second Appellant, in his Memorandum of Appeal in Civil Appeal No. 20 of 2003, has listed the following grounds of appcal:- (1) That the Honorable Tribunal erred in law <111d fact in quashing the Trial Tribunals Proceedings and Judgment. (2) That the.H:oJourable Tribunal erred in law and fact in condemning Appeliantfk~spondents to pay costs. \ 3 (3) That the Honourable Tribunal erred in law and fact in allowing the appeal. / (4) That the Honourable Tribunal erred in law and fact in not ordering a Trial de nova. Based on the above grounds of appeal, the Second Appellant, in his Memorandum of Appeal prayed to this Court to quash and set aside the judgments and decrees of the two lower tribunals and order .i' trial de nova and to condemn Respondents to costs in Civil Appeal No. 20 of 2003. These two appeals »7_ere consolidated by an Order of this court dated

2/9/2003. On 26/2/2004, by consent, the parties were ordered to dispose the two appeals by way of written submissions. The parties have fully complied with the deadline dates for filing their written submissions. Mr., Kamara is advocating for the First Appellant who is also the Second Respondent in Civil Appeal No. 20 of 2003. · The First Respondent is advocated by Mr. Temba, learned counsel. The Second Appellant had no counsel, it argued the appeal by itself. I hasten to point out that the ~• - Second Appellant argued ground four (4) only in the grounds listed in its Memorandum of Appeal. I have carefully considered the submissions of all the parties in the two consolidated appeals. I have also read the record of the two tribunals below including their judgments. I will first deal with the grounds of appeal stated in the Memorandum of Appeal in Civil Appeal No.16 of 2003. I will later on deal with the grounds of appeal sta_ted in the Memorandum of Appeal in Civil Appeal No. 20 of 2003. The first ground of appeal in Civil Appeal No. 16 of 2003 states that the Housing Appeals Tribunal grossly erred both in fact and in law in entertaining the 1st Respondent's Appeal whereas the same was time barred'. The issue therefore is whether the 1st Respondent's appeal in the Housing Appeals Tribunal was tim~ barred. Mr. Kamara• in his .,1 subn1ission contends that the 1st Appellant in ,

his submission b,efore the Housing Appeals Tribunal had contended that the 1st Respondent's appeal (J _ in the said Tribunal was filed out oftime but the said Tribunal did not make any finding on the said point which it would have sustained the said appeal. He expounded the said point further, that the judgment of the RH Tribunal in Application No. 21 of 1995 was delivered on 29/11/2000 and copies certified on 12/1_2/2000 while the Decree was extracted, signed and certified on 13/12/2000 but the . . . . \ 1st Respondent collected copies of Judgment and Decree on 2/4/2001. He contended that the 1st Respondent was not prompt in collection of the said copies, he wasted 106 days and did not obtain leave to file his appeal out of time hence he contravened Rule 5 of G.N. No. 249/1990 which requires an appeal to the Housing Appeals Tribunal to be filed within 45 days from the date of the decision of the RH TrihunaL - 4 On the other hand, Mr. Teemba, learned counsel for the First Respondent in his submission opposed the submission of Mr. Kamara on the first ground of appeal. He submitted that the issue of the . 1st Respondent's appeal . being time barred before the Housing Appeals Tribunal was never canvassed in the,said Tribunal hence the 1st Appellant is barred to raise it before this court. He contended that in any case, the First Respondent was not late in filing his appeal at the

Housing Appeals Tribunal as time st~ed to run after he had collected the certified copy of judgment and decree and he acted promptly thereafter. In his rejoinder submission, Mr. Kamara, learned counsel st for the 1 Appellant replied that the point of time limitation was fully canvassed by the 1st Appellant in the Housing A;peals Tribunal as is e~ide~t in item 7 in the written submission of the 1st Appellant in the said Tribunal. I have carefully considered the contention (issue) of the 1st Appellant that the 1st le j. Respondent's appeal at the Housing Appeals Tribunal was time barred. My careful reading of the : judgment of the Housing Appeals Tribunal in Housing Appeal No. 28 of 2001 does not show that the said point was considered and determined by the said Tribunal. In such situation, it is my considered . . st I view that the first ground of appeal by the 1 Appellant before this court is not borne out by the judgment of the Housing Appeals Tribunal in Housing Appeal No. 28 of 200 I which decision the 1st Appellant has appealed against in this court. Further, it is true as contended by Mr. Kamara in his submission that the 1st Appellant in his written submission before the said Tribunal had challenged _ t~e 1st Respondent's appeal in the said Tribun~l that it was time barred. Therefore, it can be said that 1 1 the 1st Appellant.in his submission before the said Tribunal was

in fact objecting to the 1st Respondent's appeal on the ground that it was time q;1rrcd. Was this the proper way of raising the issue before the said Tribunal? My attention is drawn to Rule 20 of the Housing Appeals Tribunal (Appeals) Rules on how to raise or take preliminary objections in the Housing Appeals Tribunal. The said Rule states as follows- "20. Where a respondent intends to take a preliminary objection to any appeal or any part of it, he shall, as soon as practicable before the hearing begins, give reasonable notice ' to the Appeal Tribunal and to the other parties to the appeal ! ·I of that objection; and if that notice is not given, the Appeals 5 Tribunal may adjourn the hearing and make such order as to costs as it may deem just." In my considered view, the point of time limitation against the appeal of the 1st Respondent at the Housing Appeals Tribunal which the 1st Appellant hc1'd stclted in his written suhmission before the I i said Tribunal was in the forJ.?. of objection against the said appeal and the 1st Appellant should have . I raised the said poigt by way of a preliminary objection in the manner stated under Rule 20 of the , . Housing Appeals Tribunal Rules as above quoted. So by raising the said point in his written st submission before the said Tribunal, the 1 Appella~t who was the 1st Respondent in the appeal before the said Tribunal did not comply

with the mm,1datory requirements of Rule 20 of the Housing Appeals Tribunal. I Further, in any event, though the 1st Appellant contends that the 1st Respondent's appeal I before the Housing Appeals Tribunal was time barred, he did not state in his submission in the said I Tribunal or in this court as to when the 1st Responde'nt had filed his appeal in the said Tribunal apart . I i from alleging that the said Respondent was not prompt in collecting certified copies of the judgment I and decree of the RH Tribunal in Application No. 2 ~ of 199 5. In his submission, the 1st Respondent contended that he was not late in filing his appeal before the said Tribunal c1s time started to run after •· I he had collected the certified copy of judgment and ,decree, so he submitted that he acted promptly. Unfortunately, the 1st Appellant did not reply o{e said contention of the 1st Respondent in his rejoinder submissio~~ In t~e final result, I find and hold that the first ground of appeal by the 1st Appellant has no merit. I ·' st I will consider the second and third grounds: of appeal by the 1 Appellant collectively. The 1st Appellant in the second ground of appeal conte11 cls that the Housing Appeals Tribunal grossly 1 . . . I . . erred in law and in fact in being in disagreement \vith the holding of the Regional Housing Tribunal , ' . st that since the 1 Respondent was occupying the suit

premises by virtue of his employment with the nd 2 Respondent, once his employment ceased, his legitimacy for occupation thereof ceased as well while in the Third ground of appeal he contended that the Housing Appeals Tribunal grossly erred st both . in fact and in law in holding that the· I J.'.cspl)11t!c1,t . could not be held liable jointly and severally with 2 nd Respondent.under the Judgrncnt;or the R.cgional Housing Tribunal. Mr. Kamara, st learned counsel for the 1 Appellant made a very depth submission in support of the said two . . ,f\1t:> ;'"tr•·:,,: , . . . .. I grounds of appeal detailing.the background of the case and that the 1st Respondent was responsible I G for the vandalism of the demised premises and solely responsible for his unwarranted occupation of the demised premises even when there was no subsisting relationship of employee/employer between him and the second Appellant. He further contended that the 1st Respondent was solely responsible for his <:>cctipation of the demised premises while he was neither in the 2nd Appellant's employment nor with ~y tenancy agreement with the Appellant. He further contended that the 1st Respondent hims~lfhad applied in the RH Tribunal to be made a party in Application No. 21 of 1995 hence he was an architect ofhisjoinder and should blame himself. On the part of the 1st Respondent, Mr. Teemba, learned counsel in his

submission contends that the findings of the Housing Appeals Tribunal cannot be faulted. He submitted that the 1st Respondent had ;no duty to return or hand over the suit premises to the 1st Appellant as that was the duty of the 2nd Appellant as a tenant of the 1st Appellant. He further submitted that the 1st Respondent as a mere employee of the 2nd Appellant had nothing to do with the matter as he was not a party to the lease agreement bet,veen the 1st and the 2nd Appellants. Could the 1st Respondent be held severally and jointly liable with the 2nd Appellant before ' the RH Tribunal in Application No. 21 of 1995? Could the employment contract on the part of the 1~1 Respondent give legitimacy to the occupation of the demised premises? Mr. Kamara, as I have earlier stated has made a depth submission in support of the said grounds of appeal and in his view the 1st Respondent was simply a difficult and incorrigabk character. I need not repeat the detailed submission of Mr. Kamara. On the other h:rnc!. Mr, Tccmba, learned counsel for the I st Respondent submitted that t~e Housing Appeals Tribunal decision was correct in that the I st Respondent could n?t be Aeid liable in the m~tter as he was not a party to the lease agreement between the 1st Appellant and the 2nd Appellant. Having carefully considered the submissions of both parties and the judgment ( ~) of the Housing Appeals

Tribunal, I find and hold as found and held by the said Tribunal that the 1st Respondent could not be held responsibk for ;my brc~1c~.cs of the lease agreement between the 1st Appellant and the 2nd Appellant as he ,vas not a p;:irty lo the s:1id lease <1grccment. He had no contractual relationship of any kind with the rt Appell~mt. He merely occupied the demised premises by virtue of his employment with the 2nd Appellant. The RH Tribunal's jurisdiction is on landlord-tenant relati~nship which only existed between the 1st and the 2nd Appellant. No such relationship existed between the 1st Respondent and the l st Appellant. In my considered view even after the l st Respondent's employment with the 2nd Appellant had ceased, it never followed that he became a tenant'to the 1st Appellant, over the dc1~1iscd premises sti 11 no landlord - tenant relationship 7 existed between them. So in my considered view, any action against the 1st Respondent or remedies for his action in ~he demised premises were to be found elsewhere not in the RH Tribunal because the latter is limited to landlord- tenant relationship only. The fact that the 1st Respondent had on his own applied to be joined in the appiication before the RH Tribunal in itself did not make him liable nd for breaches of tlie lease agreement between the 1st and 2 Appellants as he was still ~10t a party to the said agreement. There_

was still no pri vity of contract in the said lease agreement to the 1st Respondent. He was a total stranger to the said lease agreement hence he could not be made liable nd in person or jointly and severally with the 2 Appellant. In the upshot, I find and hold that the 2 nd . and 3 rd grounds of appeal have no merit. In his fourth ( 4) ground of appeal, the 1st Appellant contends that the Housing Appeals Tribunal grossly erred both in law and fact in quashing and setting aside the proceedings of the Regional Housing Tribunal purportedly on account of lack of jurisdiction. Was the said Tribunal I correct to quash and set aside the proceedings of RH Tribunal on lack of jurisdiction? This is the : issue to be considered and determined by this court in this ground of appeal. Mr. Kamara, learned '.I counsel for the 1st Appellant, {n his submission contends that it was not proper for the Housing Appeals Tribunal to quash and set aside the RH Tribunal proceedings on account of lack of jurisdiction because the 1st Respondent who had stated the said point in his petition of appeal before the said Tribunal did not canvass the said point in his written submission he filed in the said Tribunal which ineatit that he had abandoned it. He further contends that contrary to what the Housing Appeals Tribunal had held, it was proper for Mrs Awadhi, an assessor in the RH Tribunal to have given

her opinion on conclusion of the trin~; He submitted that this is so because the hearing of the application before theRHT commenced on 24/11/1999, the assessors on this day were Mrs Lyimo and Mrs Awadhi and that the said hearing was concluded on 17/10/2000 whereby the assessors were the same and they 'were the ones who g:1vc opinion. 1-Ie contended further that though Mr. Mdumare at one time sat on corm11 in the course or the RI-IT proceedings but did not give opinion. In such circumstances, Mr. K:1111:1rn contended that Section 11 (2) and (3) of the Rent Restriction Act, 1984 could not be interpreted as done by the Housing Appeals Tribunal to preclude Mrs Awadhi to give her opinion. He further submitted that after all the chairperson of RH Tribunal -. ' . is not bond by the opinion of the assessors and he may determine an application even if the assessors . who sat with him were\ibsent on the subsecptent dates after the first date of hearing. . . . \ . 8 ; On the otp.er hand, Mr. Teemba, learned counsel for the I st Appellant, in his submission 0 ____ _j contends that the i ssue of jurisdiction was weH a1dressed by the Housing Appeals Tribunal of Tanzania and that its findings cannot be faulted. /He contends that the fact that the issue was not canvassed or argued by the f st Respondent at the Housing Appeals Tribunal did not bar the said · Tribunal to address itself on it. He

submitted thJt the said point was a point of law which the said I Tribunal correctly addressed itself and came to the right conclusion. Mr. Teemba in his submission , prayed to this court.to dis~i-ss the I st Appellant'i appeal.· In his rejoinder submission Mr. Kamara, -'. learned counsel for the I st Appellant contends t1lat the 1st Respondent in his submission submitted nothing worth save that he admitted that the 1st ippellant was adjudged adversely without being afforded an opportunity of being heard on the sLd point. I have carefully considered the submissibns of both parties on the fourth ground of appeal by : the I st Appellant. I have also perused the recoJ of the two tribunals below, much more so the · ·i proceedings of RH Tribunal in Application No./ 21 of 2003 on which the issue is based. I have also read the judgment of the Housing Appeais TriiJmal on the matter. To refresh my memory, the issue is whetl1er the H~u~ing Appeals Tri bun :i I ncIcul proper Iy to quash and. set aside the proceedings of_ RHTon lack of JUnsd1ct10n. Mr. Kamara madl a very depth subm1ss1on as we have seen contendmg st that the said Tribunal erred to deal on the s~1id )1oint bcc:1use the 1 Respondent did not canvass the .i said point in his submission despite stating it iA his pcl :I ion of appeal before the said Tribunal and i that contrary to what the said ribunal he Id, it ~~as proper for

Mrs Awad hi, an assessor at the RH Tribunal to give opinion at the conclusion of the application. On the other hand, Mr. Teemba in his submission held that the findings of the l·lousil,g Appc: .ls Triburwl on the above issue were proper in 1 that the point of jurisdiction was a point of 1:iJ despite not being canvassed by the 1 Respondent iN. st his submission. - In my co~sidered vie~, though the reco.rd shows that the 1st Respqndent did not canvass the point oflack of jurisdiction in his submission/before the Hous;ng Appeals Tribunal despite raising the same in his petition of Appeal in the s~1id irribunal, l quite :,gree with the submission of Mr. Teemba that it being a point of law, the s,tid Triburul c,)u!d st;:! dwell on the same point in its - - I decision. Much more so, Rule 4 of the Hol1Sing Appe1!s Tribunal (Appeals) Rules provides interalia that in deciding the appeal, the said Tribun:,·1 shall not he confined to the grounds of objection set : forth in the memoraridti~ of appeal or taken by leave of the s<1id Tribunal. Inother words, though, i the 1st Respondent did not canvass the said jrint in his submission before the said Tribunal despite -. - I 9 '. \ I! stating it in his meniorandum of appeal, it did not bar the said Tribunal to take that point in deciding the appeal in accordance with Rule 4 mentioned above. As regards the opinion of Mrs. Awadhi at the

conclusion of the RHT proceedings, it is my considered view that the findings of the Housing Appeals Tribunal were correytand in order. I quite agree with the findings of the Housing Appeals Tribunal that Mrs Awadhi did not sit and hear the RHT application throughout. The record of the · · '·f RH Tribunal in Applicati_qn No. 21 of 2003 shows that the hearing of the application took place in three (3) different dates. On 24/11/1999 the Vice Chairman had sat with Mrs. Awadhi and Mrs. Lyimo while on-2/8/2000 he sat with Mr. Mdumare and Mrs. Lyimo and on 20/9/2000 he sat with Mrs. Awadhi and Mrs. Lyimo. I folly subscribe to the finding of the Housing Appeals Tribunal that the RH Tribunal erred on 2/8/2000 to invite Mr. Mclumarc to sit on the coram as a member; the . Vice-Chairman ought to have continued with the hearing of the application assisted by Mrs. Lyimo ' •, . . \ \ . above. · Further, I quite agree with the finding of the Housing Appeals Tribunal that on 20/9/2000, the hearing of the application ought to have proceeded while the coram was that of the Vice Chairman being assisted by Mrs. Lyimo alone and that on 17/10/2000 Mrs. Awadhi ought not to have been asked to give her opinion as she had not sat ia the hearing of the application throughout \ ' ' save Mrs. Lyin:i9 who had sent from the commencement of the hearing to the end hence competent ·-· - to file her opinion. It

is therefore cor{ect as held by the said Tribunal that inviting Mrs. Awadhi to . i, give her opinion which the Vice - Chairm,rn subsequently acted upon vitiated the proceedings and the judgment of the RH Tribunal in Appiic!lion No. 2) of 1995. Therefore, I find and hold that it was proper and correct for the Housing Appc~ils 1)-ibw~:d to qu:ish nnd set aside the proceedings and judgment of the RH Tribunal in Application No. 21 of 1995 on lack of jurisdiction. Hence ground No. 4 of the appeal of the 1st Appellant lack merit. Having disposed all the grounds 01· appeal in the Memorandum of Appeal filed by the 1st Appellant, I now move to consider and ckknnine the t'.:·ounds of :1ppcal filed by the 2nd Appellant in this court. Though the 2 nd Appellant had lild four (4) i'••·ound~; ot'appcal, it only canvassed and argued ground No. 4 in its submission contcnc';ng tlwt 1:·ic rcrn:1i,:ing grounds of appeal had been covered by Mr. Kamara, learned counsel for the 1st Appellant in his submission. In his fourth ground of appeal,"the 2nd Appellant contended that the Housing Appeals Tribunal erred in law and ' .. .::, . '\~: 1 fact in not ordering ii-trial de nova. ••·I' 10 In his submission in support of the said ground of appeal, the 2 nd Appellant contended that the Housing Appeals Tribunal having found that the RH Tribunal had acted contrary to Section 11 (2) & (3) of the Rent

Restriction Act, 1984, the proper order to be given was to quash all the proceedings and judgment of the said trial Tribunal ai1.d to have ordered a trial de novo before a well constituted tribunal. The 2 nd Appellant contended futthcr that by allowing the appeal as done by the Housing Appeals Tribuna!,_ it meant that the 2 nd Appellant was made to bear the burden for a wrong committed by the RH Tribunal. .The said Appellant prayed to this court to quash and set aside the proceedings and judgments of the two tribunals belo;vv and order a trial de novo before a well constituted tribunal. · · . I In his submission, Mr. Kamara, learned counsel for the 1st Appellant is opposed to the prayer nd of the 2 AppeUant for this court to order a trial de novo. He contends that the participation of Mrs. Awadhi in the trial before the RHTribunal did not affect or vitiate the said trial as it was lawful and proper. He further contends that a trial de novo would not be in the interest of the 1st Appellant as he has already disposed off the subject premises and he no longer holds title over the same such that a trial de novo would be overtaken by events. On the other hand, Mr. Teemba, learned counsel for the ' • ' t nd 1 Respondent contends that the 2 Appellant ~111l ikc th: I st /\ppcllant has admitted that the RH st Tribunal was not properly constituted during its clclibcr:,ttons and :1t the

time of delivering its ruling. He contends the said anomally was well considered by the Housing Appeals Tribunal plus other grounds and came to the conclusion that the 1st Respondent's appeal before the said Tribunal had to succeed. Mr. Tt;~tnba in his submission prayed to.this court to dismiss both appeals. I have carefully consideied tlie·submission of al! parties on the fourth (4) ground of appeal by ·' the 2 nd Appellant. I have also read the decision .of the J: :rnsi ng. Appeals Tribunal which quashed and ({JJ_) set aside the proceedings and the judgment of the RI-I 'Libunal in Application No. 21 of 1995. The "' -·' issue is whether having quashed the procccding,s ?nd judgment or the RI-I Tribunal in Application No. 21 of 1995, the Housing Appeals Tribunal should ::we ordered a trial de novo. The 2 nd •i Appellant in his submission c911tends that the Housing 1\npeals Tribunal should have ordered a trial ' . de novo, otherwise the said Appellant would bear a burc\cnfor a m.istake committed by the RH Tribunal itself. The 1st Appellant in his submission con•r:ndcc: l1·:\t the proceedings and judgment of the RH Tribunal in Application No. 21 o[ l 995 ,~1crc p,·,.1;1cr ;1,1d correct and tlwt a trial de novo st would not be in the interest of the 1 Appellant. The 1'' Respodcnt contended that the decision of ' 'I , 11 : .,' the Housing Appeals Tribunal to quash and set aside the

proceedings and judgment of the RH Tribunal was proper and correct and that the 2nd Appellant in its submission had so admitted. I have already earlier on in this Judgment held that the Housing Appeals Tribunal was correct t~ quash and set.aside . the proceedings andjudginent of the RH Tribunal in Application No. 21 of ,; 1995 on lack ot}urisdiction. As \Ve have seen, that was just one of the grounds that led to the Housing Appeals Tribun~l to quash and set aside the proceedings and judgment of the RH Tribunal. The other ground was that as far as the 1st Respondent was concerned he was not a party to the lease agreement between the 1st Appellant and the 2nd Appellant hence he could not be held liable for i ; ~,. breaches of the said lease agreement. Now, that the proceedings and judgment of the RH Tribunal were vitiated by non~compliance of Section 11 (2) & (3) of the Housing Appeals Tribunal was a defect occasioned by the RH Tribunal itself and not by the 2nd Appellant. In my considered view the Housing Appeals Tribunal would have considered possibility oC ordering a trial de novo. The said Tribunal had such power under Rule 3~0 of the Housing 1\ppc:1:s Tribunal (Appeals) Rules. Could t4is court order a trial de novo today? . ,' . ', I must admit that the Rent Restriction Act, 1984 has long been repealed which means that the Regional Housing Tribunals and the I-lousing Appeals

Tribunal are no longer in existence such that an order for trial de novo before the RH Tribunal would :,c rcdund:mt. Further, having held that there was no contractual relationship (that is landlord - 1,:•1~1.~t) between the 1st Appellant and the 1st Respondent it means that the remedy for the Isl Appc!l:i:1! :1g:1inst the 1st Respondent in respect of the demised premises hast<;> be sought elsewhere o~her than at the RH Tribunal hence a trial de novo before the said Tribunat'may not be effective agai1~~t the 1st Respondent. In short, in my considered view, an order for trial de novo before RH Tribunal givc!1 the aforesaid circumstances may currently be difficult to be acted upon by the pc1rties. In the final upshot, !!1c appc:d by the Isl Appc!Li:'.'. tbt is Ci•:il Appeal No. 16 of2003 has no merit and is hereby dismissed with co'.;ls. The appeal by the 2'" 1 Appellant, that is Civil Appeal No. , 20 of2003 is meritous and is hereby allowed wiiil costs '.o the c.,tcnl that the Housing Appeals Tribunal having quashed and set aside the proceedings ::nd judgment of the RH Tribunal in Application No. 21 ofl 995 should h:ive ordered a trial de novo before the said RH Tribunal. However, as the Rent Re'.;triction Act, 198,J h:1s now bc•."1 :-c;1c::'.cd sticl1 that the RH Tribunal and ' the Housing Appeals Tribunal no longer exist, no trial(:: no\'n L·:111 he ordered. In the

circumstances, I the 1st Appellant or the other parties involved in the di~:,de su\;c..:t to the lnw of limitation are free 12 to institute fresh proceedings in a court or tribunal of competent jurisd ict.ion to seek for appropriate . , remedies in respect of the dispute. It is so ordered. ' F.A.R..JUNDU, JUDGE, 31/3/2006 Right of Appeal Explained. F.A.R. JUNDU, JUDGE, 31/3/2006 31/3/2006 Coram: F.A.R. Jundu, J. For the Appellant: Absent For the. l st Respond~n.t: Absent For the 2 nd Respondent/Appellant: Mr. Amosi Kimaro, Personnel Officer C/C: Muyungi F.A.R. .JUNDU, JUDGE, 31/3/2006 13