KASSANGA RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CIVIL APPEAL NO. 2279 OF 2024 (Arising from the Decision of Ilemela District Court in Civil Case No. 10 of 2022) 1. KASSANGA H. KASANGA 2. ERNEST MWITA ---------------------------------- APPELLANTS VERSUS STEPHEN WANDWI CHACHA --------------------------------------- RESPONDENT RULING 7th June & 1st July 2024 CHUMA, J. Dissatisfied by the decision of the Ilemela District Court in Civil Case No. 10 of 2022 which ordered the 1st Appellant to pay the Respondent Tsh. 9,409,500/- as compensation for unreturned properties, interest to a tune of 7% and Tsh. 3,000,000/- as general damages the appellant appealed to this court against the said judgment and orders thereto. The appellants filed a memorandum of appeal on 2/11/2023 and thereafter filed an amended memorandum of appeal on 9/5/2024. The respondent was duly served and, on the date, set for the hearing the respondent raised a preliminary objection on one point that; 1 “The appellants' amended memorandum of appeal is bad in law for failure to file a correspondence in Kiswahili version”. The appellants represented by Mr. Ditrick Ishabairo and the respondent enjoyed the legal service of Mr. Joseph Madukwa both learned Advocates. In his submission, Mr. Madukwa argued that the amended memorandum of appeal filed on 9/5/2024 was in English contrary to Section 84 A and 53(2) of The Interpretation of Laws Act Cap 1 RE. 2019 which stipulates that pleadings filed in English must have a correspondence or must be accompanied by a Kiswahili version. He supported his argument with Ammany Construction Company Ltd vs. Makudo Engineering Company Ltd and 2 Others, Civil case No. 32 of 2023 (unreported), and urged this court to have the appeal struck out with costs. On the contrary, Mr Ditrick submitted that the memorandum of appeal already existed and that the amended memorandum of appeal does not fall within pleadings which are Plaint and WSD. He therefore finds that the case referred to by his fellow council is distinguishable and even if the amended memorandum of appeal has the defect, he sees the remedy to it is expunging the said document rather than striking out the whole appeal. 2 In rejoinder, Mr Madukwa said that once there is an amendment issued the existing one does not stand and the remedy cannot be to expunge it because if expunged then there would be no appeal at all and therefore restates his prayer for it to be struck out with cost. Having in mind the submissions of the learned councils, I will take a look at what the law says and the rules governing the filing of documents in court. The Parliament clearly stated that the language of laws shall be Kiswahili, as per Section 84 A of the Interpretation of Laws Act, 2019 which reads as follows: - “84 A (1) Notwithstanding any other written law, the language of courts, tribunal and other bodies charged with duties of dispensing justice shall be in Kiswahili” Rule 4(1)(b) of The Interpretation of Laws (Use of English Language in Courts) (Circumstances and conditions) Rules, GN.No.66/2022 provides that; “A party who intends to initiate proceedings shall file his pleadings in English with their corresponding translation in Kiswahili language”. The word shall used in the quoted provisions connotates mandatory requirements. It is without dispute that the appellant filed amended 3 pleadings in English and without attaching the Kiswahili version as rightly submitted by the respondents’ counsel which is against the dictate of the above-cited provisions. Mr Ditrick for the appellant asked this court to expunge the amended pleading and proceed on merit a fact that is not a stance of the respondent. I decline to subscribe to the position of Mr.Ditrick that amended pleadings do not fall within the pleadings referred to in Rule 4 which according to him includes plaint and Written Statement of Defence. His interpretation is out of context. I share a similar stand with Mr.Madukwa and find that the amended pleadings contravened Rule 4 of GN.No. 66/2022 and hence the objection is sustained. What then is a proper order to make? Mr. Ditrick asked this court to expunge the filed amended pleadings while Mr Madukwa called for this court to strike out this appeal. Much as I share a similar stance of Mr.Madukwa on the findings in Ammany’s case (supra) however the circumstance of that case differs from the instant one as argued by Mr.Ditrick Learned counsel for the applicant. More also at first, this objection was not raised only came late after the courts’ order for amendment. It has been said now and then that each case has to be decided on its particular circumstance, the instant matter falls within the ambit and scope of peculiar 4 that calls for this court to decide otherwise regarding the final order. Instead of striking out this appeal, I order the applicant to submit in court a Kiswahili translation to correspond to the filed English version for a matter to be determined on merit. The appellant is given seven days to file the same from the date of this order. Costs to follow the event. It is so ordered. DATED at MWANZA this 1st day of July 2024. W.M. CHUMA JUDGE Ruling delivered in court before Mr. Ditrick, Advocate for the Appellant, Mr. Madukwa, Advocate for the Respondent and the Respondent this 1st day of July, 2024. W.M. CHUMA JUDGE 5