KAMPUNI YA MABASI YA ZAKARIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA PC CIVIL APPEAL NO. 12736/2024 REFERENCE NO. 202405301000012736 BETWEEN KAM PUN I YA MABASI YA ZACHARIA............................................... APPELLANT VERSUS MARIAM CHARLES......................... RESPONDENT JUDGMENT OF THE COURT 24/09/2024 & 10/10/2024 Kafanabo, J.: This is a judgment arising from a decision of the District Court of Bunda (Hon. B.C. Sokanya, SRM) in Civil Appeal No. 01 of 2023, between the parties herein delivered on 10th March 2023. The court also notes that the Appellant was late in filing her appeal, but applied for an extension of time,.and this Court, my learned Sister Hon. Komba, J., granted the Appellant time within which to appeal and thus the present appeal was filed. The appeal was preferred by way of the petition of appeal specifying one ground of appeal which states: 'That the appellate Court erred In law by dismissing the appeal Instead of striking out, which denied the Appellant his right to refHe the same since it was not heard on merit' i At the hearing of the appeal the Appellant was represented by Mr. Onyango Otieno, a learned Advocate, and the Respondent was represented by Mr. Aloyce Kajinatus, a learned Advocate. In support of the appeal Mr. Otieno submitted that when the appeal was pending in the District Court, the Respondent raised a preliminary objection that the appeal was incompetent because the petition of appeal was drawn and filed in the Kiswahili language without being accompanied by an English translation. The preliminary objection was based on the amendment of the Interpretation of Laws Act, Cap. 01 of the laws as amended in 2021 in respect of which new section 84A was introduced. It was submitted that the appeal was filed in the Kiswahili language as per the law, and reference was made to the schedule of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022 which lists conditions in items (a-i) where the Kiswahili language shall not be used in the proceedings. It was further argued that the learned Magistrate dismissed the appeal because the petition was filed in the Kiswahili language, but the same was not accompanied by the English translation of the petition of appeal. The learned counsel for the Appellant submitted that the dismissal order implies, and has the effect that, the appeal was heard on merits which is not the because the parties were not heard on merit. Also even striking out the appeal could be wrong as the law allows proceedings to be filed in Kiswahili and that learned Magistrate could order that the English version of the petition be filed to supplement the Kiswahili version of the petition. Therefore, the learned Magistrate erred in law. It was prayed that the appeal 2 be allowed, and Civil Appeal No. 1 of 2023 be restored, and since the mistake was made by the court each party should bear their costs. Responding to the Appellant's submissions Mr. Kajinatus submitted that he concurs with the Appellant's counsel's submission that Civil Appeal No. 1 of 2023 was filed in the Kiswahili language. It is clear that when proceedings commenced at the District Court of Bunda where the laws applicable thereat are not in Kiswahili language, the use of Kiswahili language by way of informal translation could bring confusion. The learned counsel cited the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022. It was submitted that the law is clear as to when Kiswahili and English languages should be used. Moreover, It was the learned counsel's submission that our law in Civil Procedure has not been translated into Kiswahili and thus the preliminary objection was properly allowed. However, the District Court made an error by dismissing the case instead of striking it out contrary to the principles of natural justice. It was argued that, in the interest of justice, each party is entitled to be heard, the learned counsel concurred and submitted that if there is a remedy for the matter to be remitted to the 1st Appellate court so that parties could be heard, the same be granted by the Court as a remedy. After hearing the parties' submissions, it is high time for this court to determine the appeal in light of the relevant laws and take into account the parties' submissions. The proper starting point would be section 84A of the Interpretation of Laws Act, Cap. 01. R.E. 2020 as amended by the 3 Written Laws (Miscellaneous Amendments) Act, 2021. The said section provides that: 84A.-(1) Notwithstanding any other written law, the language of courts, tribunals and otiier bodies charged with the duties of dispensingjustice shall be KiswahiH. ( 2) Without prejudice to subsection (1), courts, tribunals and other bodies charged with a duty of dispensing justice may, where the interests ofjustice so require use English language in the proceedings and decisions. In the light of section 84A(1) above the language of the court is Kiswahili, and English language may be used where the interest of justice so requires. This means that, at the outset, the Appellant complied with the said section when he filed the appeal in Kiswahili given that the trial court proceedings were conducted in the Kiswahili Language. However, at this juncture, it is important to state that the application and interpretation of section 84A of the Interpretation of Laws Act(supra) is further qualified by the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022 (hereinafter the 'Rules'). Rules 3 and 4 of the said subsidiary legislation provide: 3 . Subject to the provisions ofsubsection (2) ofsection 84A of the Act, pleadings, proceedings or decisions may be in English language where it relates to matters stipulated in the Schedule to these Rules. 4 .-(l)A party who intends to initiate proceedings which, in his opinion, falls under the circumstances where the proceedings and decision thereto are to be conducted in English language, such party shaii- 4 (a) file his pleadings in English language with their corresponding translation in Kiswahili language; and (b) state the grounds upon which he relies to have the proceedings conducted in English language. In light of Rule 3 above, the matter subject of this appeal could be filed in English if it falls in the matters stipulated in the schedule of the Rules. Moreover, Rule 4(a) requires such a party to file his pleadings in the English language with their corresponding translation in the Kiswahili language. Besides, the schedule of the Rules provides for the circumstances and conditions for the use of the English language in courts. The only relevant item of the Rules to the present case is paragraph (g) of the schedule to the Rules which provides that: 'The law governing the matter subject of litigation, and the practice and procedure thereto are not available in Kiswahili language'. In light of the above, it is clear that even though under section 84A (2) of the Interpretation of Laws Act (supra) Kiswahili is proclaimed to be a language of the Court, the same can only be used if the law governing the subject matter of the suit and procedure thereto are available in the Kiswahili language; otherwise, the English language will be used in preparing pleadings, proceedings, and judgment. Reverting to the present case, it is noted that the petition of appeal was filed in the Kiswahili language and the District Court dismissed the appeal for that reason. As submitted in support of the appeal by the learned counsels for the parties the District Court was wrong in dismissing the Appeal that was not heard on merits. The cases of Bernard Balele vs Republic 5 (Criminal Appeal No. 81 of 2011) [2013] TZCA 245 (14 March 2013), 01am Uganda Limited Suing vs Tanzania Habours Authority (Civil Appeal 57 of 2002) [2007] TZCA 183 (11 June 2007) and Henry Mtei & Others vs Waziri Maneno Choka (PC Civil Appeal 86 of 2018) [2019] TZHC 145 (15 October 2019) are relevant. Moreover, this Court agrees with the learned counsel for the Appellant, that even striking out the appeal could not have been the appropriate remedy under the circumstances of this case for the following reasons: One, the Primary Court Civil Case No. 148/2022 between the Appellant, Respondent, and Christina Stanley was conducted in the Kiswahili language and the proceedings and judgment of the said case were also in the Kiswahili language. Two, the District Court should also have taken into account the fact that each case is decided based on its facts and the law should be applied to the unique facts of each particular case. For instance in the case of Zahara Kitindi & Another vs Juma Swalehe & Others (Civil Application No. 4 of 2017) [2017] TZCA 196 (3 March 2017), it was held that: "What is important is for the Court to consider the existence in the case ofspecial circumstances and the need to have the matter accelerated as well as consideration of the issue whether or not any party will be prejudiced if the conditions under the rule are overlooked," 6 Third, by taking into account the above factors and the principle of overriding objective, it is a view of this court that the Appellant should have been ordered to file an English version of the petition of appeal to cure the defect which was not fetal, but curable. The further consideration is that the law does not provide a specific remedy as regards noncompliance with language filing requirements. Therefore, in light of the foregoing, it is clear that the Appellant was condemned unheard before the dismissal of the appeal as the same was not heard on merits, and that the dismissal order was not appropriate under the circumstances of this case. See the cases of Mary Mchome Mbwambo & Amos Mbwambo vs Mbeya Cement Company Ltd (Civil Appeal 161 of 2019) [2022] TZCA 179;,(4 April 2022)andAbbasSherally & Another v. Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002. Bernard Balele vs Republic (supra), 01am Uganda. Limited suing vs Tanzania Habours Authority (supra). Therefore, this court settles for the following orders: 1. This court quashes the ruling of the District Court of Bunda in Civil Appeal No. 01 of 2023 dated 10th March 2023; 2. The dismissal order arising therefrom is hereby set aside for being unlawful. 3. Further, Civil Appeal No. 01 of 2023 is hereby restored and the District Court of Bunda is ordered to hear the appeal on merits before a different Magistrate. 4. Before hearing the appeal, the District Court of Bunda shall order the Appellant to file an English version of the petition of appeal. 7 5. Given that the dismissal of the matter was not attributed by either of the parties herein, each party shall bear their costs. It is so ordered. Dated at Tarime this 10th day of October 2024. K. I. Kafanabo Judge The ruling was delivered in the presence of Mr. Onyango Otieno, Advocate for the Appellant, and Mr. Onyango Otieno, Advocate h/b of Mr. Aloyce Kajinatus,^vocateJor the Respondent. K. I. kafanabo Judge 10/10/2024 8