KAGERA TEA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY)

AT BUKOBA MISCELLANEOUS CIVIL APPLICATION NO. 42 OF 2023 (Arising from the High Court of Tanzania (Bukoba Sub-Registry) at Bukoba in Civil Case No. 10 of2023) KAGERA TEA COMPANY LTD............................................... APPLICANT

VERSUS TANZANIA ELECTRICITY SUPPLY COMPANY........... 1st RESPONDENT THE ATTORNEY GENERAL......................................... 2nd RESPONDENT

RULING 31st October & 6th November 2024 KIWONDE, J. The applicant named above filed an application by way of chamber summons supported by an affidavit of Mr. Peter Alloys Mgimba, the principal officer praying for leave to appear and defend the suit, Civil Case No.lOof 2023. The respondent filed a counter affidavit disputing some facts deponed by the applicant's principal officer and thus, the matter became ripe for hearing. During hearing of this application, the applicant was represented by Mr. Frank Kalory John, learned counsel while the respondents were represented by Mr. Victor Mhana, learned State Attorney. i When invited to submit in support of the application, Mr. Frank Kalory submitted that the first respondent instituted Civil Suit No. 10 of 2023 before this court claiming TZS 261, 570, 026. 81 from the applicant for unpaid electricity bills. He argued that the applicant disputed the amount claimed that it is not genuine as it has been stated under paragraph 5 of the affidavit and that is why he is seeking leave to appear and defend the main suit. In support of this point, he cited the case of CRDB Bank Ltd Versus John Kagimbo Rwambanganza [2002] T. L. R 64, where it was held that when the defendant shows through affidavit that there is a triable issue, then he should be granted leave to appear and defend the suit without condition. The counsel said that, the right to

be heard in defence is fundamental and he therefore, he prayed this application to be allowed. In reply, Mr. Victor Mhana, learned State Attorney opposed this application. He argued that the suit by summary procedure is a statutory suit for recovery of electricity bills as per Order XXXV Rule 1(b) of the Civil Procedure Code, Cap 33. He cited the case of Zalla V. Lally Brothers Ltd [1999] E. A 691. 2 The learned State Attorney said the criteria to grant leave to the defendant to defend the suit include existence of a real triable issue raised in the affidavit. According to him, in the applicant's affidavit, nothing is attached to demonstrate the amount chargeable. He was of the view that these are mere allegations with no proof. The learned State Attorney referred to the cases of Tanzania Telecommunications Co. Ltd V. Timothy Lwanga [2002] T. L. R 149 and Thessen Stahl Union Ex pert V. Kibo Wire Industries [1977] T. L. R 54 He therefore prayed this application to be dismissed for lack of merit. In rejoinder submissions, Mr. Frank Kalory, submitted that the rationale behind the cited order above, is to give the defendant the right to be heard. He agreed that it is a statutory suit, but the defendant has a room to be heard. He reiterated that the court should grant the application without conditions if the defendant shows arguable case. The learned counsel further submitted that

there is no requirement to attach documents to prove the triable issue. The triable matter has to be shown in the affidavit and the applicant did so. From the pleadings and oral submissions, the main issue for determination is whether the application has been merited. 3 It is a matter of law under Order XXXV Rule 2 of the Civil Procedure Code, Cap 33 (R. E 2019) that in summary suit, the defendant has no automatic right to defend the suit unless he obtains leave of the court of law. Also, under rule 3(1) of the same Order, leave to appear and defend the suit by the defendant can be granted upon application where the defendant or any authorized officer has to swear an affidavit which discloses such facts as the court may be deem sufficient to support the application. The referred case laws above require the defendant to show through such affidavit that there exists an arguable or triable case. How to ascertain this is by looking at the plaint to find the claims by the plaintiff and the affidavit supporting the application for leave to appear and defend the suit, if the two pleadings contain antagonistic matters, then it is said to be a triable case. In the application at hand, the plaintiff claims for payment of unpaid electricity bill amounting to TZS 261, 570, 026.

81. But the amount has been disputed by the applicant. This has been stated under paragraphs 4 and 5 of the applicant's affidavit. Therefore, the allegation by the respondents that the applicant did not state in the affidavit if there is arguable suit for this court to grant leave is misconceived. 4 In the upshot, this court finds merit in this application and it is hereby allowed. The applicant is granted leave to appear and defend the suit. The applicant is availed with 21 days from the date of this ruling to file his written statement of defence and the respondents will reply within seven (7) days prescribed by law from the date of receipt of the defence. Given the nature of the application, each party shall bear own cost. It is so ordered. F. H. KI NDE

JUDGE 06.11.2024 Court: Ruling is delivered in chamber in the presence of Mr. Victor Mhana learned State Attorney for the respondents and Grace Mutoka (RMA) but in the absence of the applicant this 6th November 2024 and the right of appeal is explained.

ONDE

JUDGE 06.11.2024 5