KCB JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA

AT MWANZA CIVIL CASE NO. 2183 OF 2024 KCB BANK TANZANIA LIMITED………………………….………….. PLAINTIFF

VERSUS MAXWELL MICHAEL KIMARO …………………………………………DEFENDANT

JUDGEMENT 5th & 14th February, 2025 CHUMA, J. The suit from which this ex-parte judgment emanates has been preferred by the plaintiffs herein against the defendant seeking a judgment and decree as follows; a) An order for the immediate payment of the outstanding loan amounted to TZS 104,320,838/= by the Defendant, interest and penalties accrued thereto. b) An order for payment of a cumulative interest on prayer hereinabove at the rate of 17% per month from 4 th March, 2024 to die date judgment. c) An order for the payment 12% of court interest on decretal sum from the date of judgment to the date of payment in full. 1 d) An order for payment of general damages on assessment of the court and, e) Costs of the suit to be borne by the Defendant. At the commencement of the hearing ex-parte, the plaintiff was represented by Mr. Pesha Learned advocate. The defendants, on the other hand, entered no appearance despite being served to appear in court. In this suit, the plaintiff summoned only one witness to establish the filed claims. In his evidence PW1, Mr. Omary, Ismail Abdul working with KCB Bank as Business Banker stated that the defendant obtained a staff loan worth Tsh 111,000,000/= in our bank on 7/1/2023 or 84 months period. The loan had to be repaid to the tune of Tsh 2,080,141.29 per month with 14% interest per year. The defendant failed to honor the repayment schedule since

20/3/2024. After the defendant’s default, the defendant was issued with a demand notice via registered mail requiring him to pay his outstanding debt within 14 days but nothing was complied with. PW1 tendered Loan application form, Bank statement, and demand notice which were all admitted and marked as PE1 to 3 respectively. He finally argued this court enter judgment in the plaintiffs’ favor as per the sought reliefs in the lodged plaint. 2 Having analyzed the evidence adduced by PW1 I am invited to determine whether there was a loan agreement between the plaintiff and the defendant. Two whether parties performed their obligations as per terms and conditions of the loan agreement and the last one is what reliefs are the parties entitled to. Before embarking on tackling the above issues it is necessary to restate the parameters of proof in civil proceedings. Section 110 and 111 of the Evidence Act, Cap. 6 is explicit that he who alleges has a burden of proof and the standard is on a balance of probabilities. The law is also settled that such burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his. The imperative requirement under the cited provision was given an impetus in Barelia Karangirangi Vs. Asteria Nyalwambwa, CAT-Civil Appeal No. 237 of 2017 (unreported); and Hemed Issa Vs. Mohamed Mbilu [1984] TLR 113, wherein it was held

as follows: “It is similar that in civil proceedings, the party with Legal burden also bears the evidential burden and the Standard in each case is on a balance of probabilities.” See also the case of Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported). 3 Starting with the first issue, it is evident from the testified evidence by PW1 and PE1 that the parties entered into a loan agreement worth Tsh111,000,000/= on 7/1/2023. The first issue leads this court to the second issue of whether the parties performed their obligation as per the agreed terms and conditions. In this issue, it was the evidence of PW1 that the defendant failed to honour the repayment schedule since 20/3/2024 as exhibited in PE2. After the defendants’ default, the defendants were issued with a demand notice PE3 via registered mail requiring them to pay an outstanding debt within 14 days but nothing was complied with. In that regard, the first and second issues are answered in the affirmative which takes me to the last issue on reliefs sought. Guided by the above position of law and from the filed pleadings and the testified evidence of the plaintiff’s witness, it is my conclusion that the plaintiffs have advanced a credible case that deserves nothing more than allowing all reliefs sought in a filed plaint herein above highlighted. I so order. 4 DATED at MWANZA this 14th day of February, 2025. W.M. CHUMA

JUDGE Judgment delivered in court virtually before Mr. Pesha advocate for the plaintiff and in absence of the defendant this 14th day of February 2025. J. MUSAROCHE

DEPUTY REGISTRAR 5