20000928 TZHC Dar es Salaam

IN TriE ~HGH COURT Oi '.CANZA.i'HA ~------ Ar DA..1:{ ES :3ALAAM CIVIL APPEAL NOo 89/1995 ROSE PASCHAL KASENENE VERSUS / ZAINABU KO SE PASCILltL KA3ENEI\1E o • RESPONDENT / RULING }HEMA,J. A : .._ ;.;t,~:i.w,, ...: This is an application by Kase Paschal Kasenene for.,;~y-ave to apeal ... . f. to the Court of Appeal against the judgment of this Cou:r:t··~.;-Bubeshi J. delivered on 8th September 1999. 'rhe application accompani'ed by an affida\"it has been filed under Section 5 ( 1) (c) of the Appe!tate Jurisdiction Act 1979. The grounds upon which leave is being sought have b~en stated in the affidavit to be: (1) the aforesaid judgm0nt has been based.partly an additional evidence taken by Nchimtnbi learned ... ·. serior Resident Magistrate:: against the order of·:/ the High Court dated 19/8/97• ( ii) the order of granting half share in the house on Plot .IDe553 B Sinza titled matromonial. property is based on additional evidence token by Hortoulable > I J ,, . Nchimbi Senior Resident Magistrate against the authority of the High Court~ (ill) the order of custody of the child Paul Kaseneile granted to the respondent did deprive the applicant permanently autho:d. ty on the child• The respondent on the other h~nd has opposed the application for leave for the reason that it lacks any points of lat·! to be attended to by the Court of Appeal. Mrs Tenga learned Advocate represents the respondentt while Mr Kashumbugu learned counsel advocated for the applicant, they have have dubmitted written argments for and against the application. ... p - _ . . . . , . . . . , . ~ . . . . , , . . . . . . . . . . . . . . ,.. 2 On the g.rcuncl oh ada.itioncl. evidence H is ·i;he viev1 of Hr. Kas11ur.1bugu. ,'.f that such e\rid.ence t·JO.S tak~n b;y a c~urt uhich had no jtu'ischction in view of the High Court order d.ated 19/8/97. On the evidence . f ' {•.:i on record it is not clear as to no~" the record fom1d its way. back·,,~·tb.e .;+ .r Resident Magistrate's Court acspi"i:e tho specific order of the Hieh Court. I would agree ,·Ii th Mr Kashunbugu that the Resident iviaBistrat'e' s Court had no ju.risdic-cion \then it eutertdn::;d tl-.1.c :-:iatter w:1en taking additional evidence ru1d it follO\·ts in r..y hur.ible vie\·J the probnti ve value of this additional 0vtdence is i::erta.inly a point of law, for consideration by the · ·:•: Court of Appeal. In add.i'cion I am egually satisfied that this wotlld also effect the order for the half share in th0 house on Plot t~o.553 B Sinza so .long as it \-ms also subst2.11tially based on the additional evidence uncler referrence. On the othel~ hand I find Ers Tenc;a 1 s sub:nission to b0 of no assistance when she arg,v.es that the a:9]cllo.nt uas after all accorded opportunity to cross examine the res:pono.cnt Hhen this a.cldi t.ional evidence vias being r.:·c ordeci. so lone; e.s tile r:iat ter was ·na't properly before that court. All saio. I find i~icri t in the application f.or leave to appeal to the Court of Appecl. I accordingiy grant it t·d'ch costs. I order accordin 0ly. .,,,,.·· ,, I , I. . :' .. . \ l,.:\_ :r". f. I •• \, S~ IHIHA, JuDGi.£ 28/9/2000