land appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 25379 OF 2024 (Originating From Application No. 482/2020, Kinondoni District Land and Housing Tribunal) MAGRETH SADICK LYIMO.... .......... ...............APPELLANT

VERSUS CECILIA GASPER MASSAWE................................ .....RESPONDENT

JUDGMENT 15th to 22nd November, 2024 E.B. LUVANDA, J The Appellant named above is aggrieved by the decision of the Tribunal which decreed that the eviction of the Respondent from the suit property carried out by the Appellants and assignee was unlawful; the Appellant was condemned to pay the Respondent a sum of TZS 10,000,000 as a loss of properties during the illegal eviction and TZS 3,000,000 as refund to the construction of the suit property carried out by the Respondent during the tenancy agreement. In the memorandum of appeal, the Appellant grounded that: One, the Honorable Chairperson erred in law by entertaining the dispute between the Appellant and Respondent without considering that the trial Tribunal had no pecuniary jurisdiction to hear and determine the land dispute where the substantive claim of the subject matter is TZS 3,000,000; Two, the Honorable Chairperson erred in law and facts by ordering the payment of TZS 10,000,000 i being the stolen money and damage of property at the time of eviction without considering that the trial Tribunal had no original jurisdiction to award damages arose from criminal allegations; Three, the Honorable Chairperson erred in law by admitting and relying on exhibit P8 in making the decision of the trial Tribunal without considering that exhibit P8 was objected by the Appellant and was rejected by the trial Tribunal on 05/08/2021;

Four, the Honorable Chairperson erred in law and facts by ordering the payment of TZS 3,000,000 to the Respondent being the construction expenses without considering that was not among of the reliefs claimed by the Respondent before the trial Tribunal; Five, the Honorable Chairperson erred in law and facts by declaring that there was a valid lease agreement between the Respondent and Michael Peter Shayo (deceased) without considering that there was no any lease agreement which was tendered by the Respondent before the trial Tribunal; Six, the Honorable Chairperson erred in law by her failure to evaluates testimonies by the Appellant (DW1) in the judgment of the trial Tribunal hence reach into a wrong and unfair decision against the Appellant. Mr. Hardson B. Mchau learned Advocate for the Appellant submitted that looking in the Respondent's annexures CGM1 and MGC3 (tenancy agreement) in the Application (which were admitted as exhibit P8) it shows clearly that substantive claim by the Respondent as per the signed agreement was TZS 3,000,000. He 2 submitted that on 16/11/2020, the Appellant filed the preliminary objection challenging inter a/iaXhe pecuniary jurisdiction of the trial Tribunal of which the trial Tribunal dismissed the preliminary objection. He submitted that it is a well- established principle that it is the substantive claim which determines the jurisdiction of the

Court and parties are always bound by their pleading, citing Kubili SuSulu vs. Mhindi Shija, Misc. Land Case Appeal 15 of 2020, HC 15192. Ground number two, the learned Counsel submitted that the trial Tribunal had no original jurisdiction to make an order for the payment of TZS 10,000,000 being the stolen money and damage of property at the time of eviction as this power is vested to the Magistrate's Courts in exercising criminal jurisdiction. He submitted that the general jurisdictions of the trial Tribunal are provided under section 33 of the Land Disputes Courts Act, Cap. 216 R.E. 2019, argued the Tribunal has no jurisdiction to issue an order on matters of criminal nature, He submitted that during the hearing of the case in the trial Tribunal the Respondent failed to provide any evidence to prove the criminal charges against the Appellant on the money alleged to be stolen rather she tendered the judgment relating to malicious damage of property which had nothing to do with the money which the trial Tribunal awarded to the Respondent to the tune of TZS 10,000,000. 3 Ground number three, the learned Counsel asked for this Court to expunge exhibit P8 from the record of the matter, for the explanation that on 5/8/2021, the Respondent (PW1) tendered the said agreement and the same was objected by the Appellant's Counsel whereby the trial Tribunal sustained the objection and

trial Tribunal rejected the said document. He submitted that on 17/07/2022 the Respondent through another witness PW2 tendered the same document which was already rejected by the trial Tribunal, where the Counsel for the Appellant objected the admissibility of the said document as the same was already rejected, but the trial Tribunal overruled the objection and the said document was admitted as exhibit P8. He submitted that it is a well- established principle of law that once the Court or Tribunal has made a decision regarding the admissibility of an exhibit and rejected it like in the instant case, the court is generally considered functus officio and cannot admit the same document in future through another witness, citing Sophia Simon (Administratrix of the Estate the Late Maliatabu Fugugu Kilimuludubi) vs Dorothea B. Aloyce and Another, Civil Appeal 56 of 2021, HC. Ground number four, the learned Counsel submitted that looking at paragraph 8 of the Respondent's application, the Respondent never claimed for the construction costs to the tune of TZS 3,000,000. He submitted that, as shown at pages 1 and 2 of the typed judgment of the trial Tribunal and clause 8 of the 4 Respondent's application; the Respondent claimed for the following reliefs in the trial Tribunal: an order for declaration that the action by the Respondent of evicting the Applicant through partial demolition

and vandalizing of business items is unlawful; an order against the Respondents for payment of money lost during the said vandalization of business items and partial demolition of the property in dispute as well as destructed property all calculated to the tune of 20,000,000; refund of the pending tenancy period plus damage thereof to the tune of 4,000,000; costs of the suit be borne by the Respondents; any other relief(s) that the Honourable Tribunal deem fit and just to grant. He submitted that it is a trite law that, the Court/tribunal has no power to grant relief which was not claimed in the pleadings as parties and the Court are always bound by the pleadings, citing Jordan University College vs. Mark Ambrose, Civil Appeal No. 267 of 2020, CAT. Ground number five, the learned Counsel submitted that during the hearing of the case in the trial Tribunal there was no any lease agreement which was tendered by the Respondent in respect of the suit land. He submitted that the Respondent tendered only a document title "Mkataba wa Upangaji' (exhibit P8)z arguing that when looking the contents of the said document has no any element of a valid lease agreement, rather a mere construction acknowledgement agreement. 5 Ground number six, the learned Counsel submitted that it is a well settled principle of law that, the trial Magistrate or a Judge must evaluate the entire evidence tendered before the Court as a whole before reaching into a decision, citing James Bulow & Others v. R [1981] T.L.R.

283. He submitted that the learned Chairperson erred in law by her failure to evaluates testimonies by the Appellant (DW1) in the judgment of the trial Tribunal. He submitted that the judgment of the trial Tribunal reveals that the learned Chairperson evaluated the testimony and the evidence from the parties at pages 11 to 14 of the typed judgment. He submitted that when looking from pages 11 to 14 of the typed judgment of the trial Tribunal nowhere the learned Chairperson neither evaluated nor analyzed the evidence and testimony of the Appellant. He submitted that it is a trite law that, summarizing the evidence is one thing and its evaluation is another thing, citing Leonard Mwanashoka vs. Republic, Criminal Appeal No. 226 of 2014, CAT. In reply, Mr. John Mark Maro learned Counsel for Respondent submitted that the contract entered between the Respondent and the Appellant's deceased husband (exhibit P8) only shows involvement of 3,000,000 as money spent in the construction of the property in dispute by the Respondent, argued that during the course of her tenancy and running of business, the Respondent herein and her landlord (Appellant's deceased husband) saw the need for 6 electrical installation to the premises in dispute, as well as construction of a toilet, which will be self dependent to the business premises to prevent interaction with the Appellants (deceased) husband's

premises. He submitted that as per the said agreement, the Respondent was meant to be living into the said premises, and also the business was engaging in sale of alcohol, hence the toilet service to the Respondents' clients was unavoidable. He submitted that there was an oral contract between the Respondent and the Appellant's husband (deceased) on installation of electricity and construction of a toilet. He submitted that this is where the total cost spent by the Respondent deviate from 3,000,000 to over 4,000,000, argued was clearly pleaded under paragraph 4 and 6A(i) of the Application No. 482 of 2020. He submitted that in determining the pecuniary value for purpose of the court's jurisdiction the court begins with the estimated value pleaded by a party in his pleadings, notwithstanding the absence of the valuation report on the suit property, citing Karim Shaibu vs Mussa Halfani Bahatisha, Misc Land Case No 17 of 2015, HC. Ground number two, the learned Counsel cited section 167(1) of the Land Act Cap 113 R.E. 2019, argued it provides that it is land Courts which have exclusive jurisdiction to hear and determine all disputes, actions and proceedings concerning land. He submitted that corresponding exclusive jurisdiction to deal with land is provided for under Section 4(1) Cap 216 7 (supra). He submitted that the Courts have traversed through similar situation, involving

the court to ascertain whether land Court can award damages. He cited Gregory Paschal Madata vs Ashfa Kanji, Land Application No 62 of 2021. He submitted that the Respondent pleaded a claim through paragraph 6(A)(i) of the application which argued echoed in the reliefs claimed by the Respondent under paragraph 8(ii) and (iii) of the application. He submitted that this is in relation to the Exim Bank case (supra) that the Tribunal was correctly vested with the jurisdiction to make an order for payment of the said 10,000,000 for reason that the said loss emerged in the cause of unlawful eviction from the business premises of the Respondent by the Appellant. He submitted that this loss was also as per discretion of the court since the total loss was estimated to be over 20,000,000. He submitted that this matter is purely land matter and not otherwise since it is a breach of lease agreement, and what caused the said loss is emanating from unlawful eviction from the disputed premises which is purely land and housing matter. Ground number three, the learned Counsel submitted that after the Appellant alleged that exhibit tendered had some variation with the one annexed on the application, the Tribunal made a ruling that the said exhibit be rejected. He faulted the allegation that the Tribunal was functus officio, being wrong for reason that it had not reached finality of Application

No. 482 of 2020, arguing 8 therefore that when the proper original of what was annexed to the application was tendered it was now accepted as exhibit P8. He cited Blacks Law Dictionary 9th Edition regarding the definition of functus officio. Also cited Alcon International Limited Vs The Standard Chartered Bank Of Ugand A And Another, Taxation Cause No. 1 of 2012 (in Appeal No 2 of 2011). He submitted that exhibit P8 was initially objected because it had slight difference with the one which was attached on the Respondent's application, for explanation that both PW1 and PW2 had their own copies after the execution of the said instrument. He submitted that they have the same content, date names, only that PW2 he had written his name and number at the bottom of his copy, which was the one appended to the application. He submitted that during the hearing, PW1 tendered her copy which had no names and phone numbers of PW2. He submitted that the Appellant raised objection to the effect that the said exhibit was forged since it did not resemble that which was annexed as exhibit MGC3. He submitted that after the said exhibit was rejected, when PW2 was adducing his evidence he had the exact original instrument which was appended on the application but misplaced when PW1 wanted to tender it, and after thorough examination by the assessors and the learned Chairperson including the Appellant

they agreed it was a similar document as 9 the one present in court hence it was admitted as exhibit P8. He submitted that this falls under the exception number one of number one of functus officio rule. He submitted that the Appellant's effort to expunge the attachment "MCG 3" (sic, exhibit P8) may not be fruitful for reason that this contract is also recognized in exhibit Pl, hukumu Shauri ia Madaiya Taiaka Namba 32 of 2018, at page 6 last paragraph, as well as exhibit P2 Baraza ia Kata Kimara Shauri Namba 52/2019 Muhtasari wa Maamuzi ya Shauri ia Mgogoro wa Kuomba Kupata Fremu (Chumba) citing page 2 paragraph 3 of the said document. Ground number four, the learned Counsel submitted that the Respondent herein at the trial Tribunal pleadings particularly paragraph 6(i) claimed TZS 4,000,000 as expenses incurred in constructing the property in dispute, and payment of TZS 20,000,000, being the total value of money lost and damage of the vandalized items during the said illegal eviction made by demolition and destruction of items. He submitted that the said TZS 4,000,000 is reflected on paragraph 8(iii). He submitted that the Respondent herein prayed for any other relief(s) that the Tribunal deemed fit and just t grant, which is solely on discretion of the court argued nowhere the learned Chairperson erred either in law or on facts. io Ground number five, the learned Counsel

submitted that possibly the Respondent is reading between lines as the said agreement (exhibit P8) clearly identifies the Respondent "ni mpangaji wa ndugu Michael P.Shayo" argued, finally it states further that " ataishi kwenye nyumba hiyo kwa muda wa miaka b tisa (9) na mkataba huu utaanza rasmi tarehe 1/1/2013 na kuisha tarehe 1/12/2021.zz He submitted that it should be noted that leases are legal and binding contracts that set forth the terms of a lease agreement in a real estate and real personal property, citing Cap 113 (supra). He submitted that all the contents of a valid lease agreement, such as availability of parties, subject matter of a lease which must be immovable property, duration of a lease, and consideration are the basic components present in the said agreement between the Respondent and the Appellants (deceased husband). Ground number six, the learned Counsel submitted that the Appellant unlawfully evicted the Respondent and by assistance of the hooligans managed to break into the said premise, stole cash money, drank alcohol stock that was available for sale, and destructed business items, throwing perishable commodities outside in the rain, arguing to make things worse they made the said illegal eviction while it was raining and without proper arrangement as security of the commodities and items thrown out of the premises. He submitted that the red tapes

seen in the pictures, enclosed around the thrown business items was provided by a good Samaritan and no any canvas (as claimed by the Appellant through her evidence or there were watchmen guarding the items. He submitted that if were there, she should have tendered inventory (as an exhibit) of the items moved out of the disputed premises or the list of the watchmen who were providing security at the scene on the material day as in her evidence on page 11 paragraph 2 of the judgement. He submitted that in the entire evidence provided by the Appellant at the trial Tribunal there is no single exhibit tendered by the Appellant to justify her action of evicting the Respondent, argued irrespective of the fact that the Respondent was cautioned by the Primary Court in matrimonial case exhibit Pl to comply with the previous contract or to challenge it at the ward tribunal, citing page 6 of exhibit Pl. He submitted that the Respondent fails to understand which evidence tendered by the Appellant that the learned Chairperson failed to evaluate. On rejoinder, the learned Counsel for Appellant, on ground number one submitted that the Counsel for the Respondent conceded that, the value of the subject matter based on agreement annexed in the Application which was admitted as exhibit P8 is Tshs. 3,000,000. He submitted that, based on the concession by the Counsel for the Respondent, the trial

Tribunal had no 12 pecuniary jurisdiction as the alleged amount to the tune of Tshs. 1,000,000 was not part of the agreement between the Respondent and one Michael P. Shayo (deceased) as clearly shown in exhibit P8 and the Respondent failed to adduce any evidence on the amount of money that exceeded to the tune of 1,000,000 which was not part in the written agreement between the Respondent and one Michael P. Shayo (deceased). He submitted that, it is the substantive claim/value of the subject matter which determines the pecuniary jurisdiction of the Court/Tribunal and any other relevant document annexed to it (exhibit P8), citing Kubili Sululu (supra). He submitted that that, as per exhibit P8, the trial Tribunal had no pecuniary jurisdiction to hear and determine the dispute which the value of the subject matter is TZS 3,000,000, argued the same is vested to the Ward Tribunals. Regarding ground number two, the learned Counsel submitted that the Counsel for the Respondent failed to reply on whether the trial Tribunal had jurisdiction to award compensation arose from the criminal allegations to wit stolen money and damage of property at the time of eviction. He submitted that the Counsel for the Respondent submitted on the jurisdiction of the trial Tribunal on land matters which has nothing to do with Appellant Counsel's submission in chief. He submitted that the trial Tribunal

had no original jurisdiction to award 13 compensation/damages arising from criminal allegation as the same is vested to the Magistrate's Courts when exercising criminal jurisdiction. For ground number three, the learned Counsel submitted that in his submission the Counsel for the Respondent conceded that exhibit P8 was rejected by the trial Tribunal through PW1 (the Respondent) and the same exhibit was tendered by PW2 and was admitted by the trial Tribunal, argued it was irrespective of the fact that the admissibility of the said exhibit was objected by the Counsel for the Appellant. He submitted that, upon its decision which rejected exhibit P8 through PW1, the trial Tribunal was functus officio to admit the same exhibit through PW2. He reiterated his prayer that, exhibit P8 to be expunged from the record of the trial Tribunal for been improperly tendered and admitted by the trial Tribunal. Ground number four, the learned Counsel submitted that in the submission the Counsel for the Respondent failed to show exactly where the relief for the payment of TZS 3,000,000 being construction costs was indicated/prayed in the application filed in the trial Tribunal by the Respondent. He submitted that it was improper for the trial Tribunal to award TZS 3,000,000 being construction costs which was not among of the reliefs claimed by the Respondent. 14 Ground number five, the learned

Counsel submitted that, in submission the Counsel for the Respondent submitted that there was a valid lease agreement between the Respondent and one Michael P. Shayo (deceased) without showing how the said agreement qualifies to be a valid lease agreement. He submitted that that exhibit P8 was not a valid lease agreement rather a mere construction acknowledgement agreement. Ground number six, the learned Counsel submitted that in submission the Counsel for the Respondent failed to show exactly where the learned Chairperson did evaluate the testimonies by the Appellant (DW1) in the judgment of the trial Tribunal. He submitted that the learned Chairperson failed to evaluate testimonies by the Appellant in the judgment of the trial Court which renders the judgment and proceedings of the trial Tribunal nullity. To start with ground number one, the same is unmerited. At paragraph 6(A)(i) of the application, the Respondent pleaded a claim of TZS 4,000,000 as against the Appellant. This claim is within the pecuniary jurisdiction of the trial Tribunal. As ruled by the learned Chairperson, that the Respondent who was the claimant at the Tribunal had a duty to state the estimated value of the subject matter or property. In Karimu Sahibu (supra), this Court ruled, I quote, " Therefore, in determining the pecuniary jurisdiction courts took at what is pleaded in the claim, on the assumption

that what is pleaded therein is true. The stated value of the property in dispute according 15 to the claimant, is Tsh fifteen million (15,000,000/=) which is beyond the pecuniary jurisdiction of the Ward Tribunal per section 15 of the Land Disputes Court Act, 216" For the above reason, I hold a view that this complaint is without base, it is dismissed. Ground number two, it is common knowledge that the cause of action emanates from the illegal eviction carried out by the Appellant along her assignee without any lawful order which had elements of breaching the subsisting tenancy agreement exhibit P8. Exhibit P8 was embraced in the judgment of Shauri !a Madai ya Taiaka Na. 32 of 2018 exhibit Pl, at page 6 along the judgment Sahauri ia Jinai Na. 1728 of 2020 exhibit P6. Therefore, an argument by the learned Counsel for Appellant that Tribunal had no original jurisdiction to make an order for the payment of TZS 10,000,000 being the stolen money and damage of property at the time of eviction for an argument this power is vested to the Magistrate's Courts in exercising criminal jurisdiction, is a misleading argument. The cause of action is illegal eviction which paradoxically is a civil wrong. The criminal court in exhibit P6 was dealing with criminality committed by the Appellant in relation to destruction of the properties in the course of the illegal eviction. Arguably, in law,

the criminal court apart from imposition of penal measure, could had discretion to order payment of compensation for damaged properties. Having abstained from issuing such orders, a recourse was 16 open for the Respondent to initiate civil action against the same cause of action. Now, as I have hinted above, that the entire saga revolve on illegal and unlawful eviction of the Respondent from the suit premises where the Respondent was protected by the tenancy agreement exhibit P8. Therefore, a proper forum was the Tribunal which had concurrent jurisdiction with the district court over reliefs (see sections 107(1) and 109(2)(a) Cap 113, also Bharya Engineering & Contracting Co. Ltd vs Nyota Venture Company Ltd, Misc. Land Application No. 6716 of 2024, Land Division). Herein the substantive claim was for payment or refund of TZS 4,000,000 which was pleaded as being costs and expenses incurred to renovate cum construct the demised premises which formed an integral part of the tenancy agreement exhibit P8. Therefore, to say the Respondent ought to sue for refund of TZS 4,000,000 and sue at the criminal court or civil court as the case may be, for a sum of TZS 20,000,000 (pleaded) but awarded TZS 10,000,000 (as a loss of properties during the illegal eviction), invariably defeat logic and common sense. As it amount to multiple actions and suits, which means more costs and time to

litigants. As I have said above, the criminal court having abstained to exercise its discretion of imposing compensation for damaged properties, the doors were open for the Respondent to sue at the Tribunal along any relief for 17 refund of costs for construction (renovation) of the suit property in connection to the breach of the lease agreement exhibit P8. Section 4(1) of Cap 216 (supra), oust the jurisdiction of the magistrates courts over civil action arising from Cap 113 (supra), it provides, 1'Unless otherwise provided by the Land Act, no Magistrate's Court established by the Magistrates’ Courts Act * shall have civil jurisdiction in any matter under the Land Act * and the Village Land Act' In totality, a complaint in this ground has no merit. Ground number three, it is true that on 5/08/2021 when PW1 produced for tendering a lease agreement with commencement date 1/1/2013, the Tribunal sustained an objection raised by the learned Counsel for Appellant, that the document was not filed and served to the Appellant as per regulation 10 of Land Disputes (The District Land and Housing Tribunal) Regulations GN 173 of 2003. On account that it was a different version of what was attached to the pleading (application). Thereafter on 7/11/2022 the Tribunal delivered a ruling allowing PW2 to tender the same document on explanation that PW2 tendered an original document differently

from which was rejected previously and it was filed and served to the Appellant. To my view, I am not seeing any problem to this verdict. The reason for rejection of the first document were not meant that the Respondent was precluded to produce the correct version. After procuring 18 the original document it cannot be said that the Tribunal was incapacitated or rendered functus officio to determine its admissibility. Regulation 1 of GN 173 (supra), is more elaborate, I reproduce the entire regulation for brevity. fl) The Tribunal may at the first hearing, receive documents which were not annexed to the pleadings without necessarily following the practice and procedure under the Civil procedure Code, 1966 or the Evidence Act, 1967as regards documents. (2) Notwithstanding sub-regulation (1) the Tribunal may, at any stage ofproceedings before the conclusion ofhearing allow any party to the proceedings to produce any material documents which were not annexed or produced earlier at the first hearing. (3) The Tribunal shall before admitting any document under sub-regulation (2)- (a) ensure that a copy of the document is served to the other party; (b) have regard to the authenticity of the document' To me sub- regulation (2) is more accommodative than restrictive, it is coached in rather permissible terms. In fact, the above regulation does away with procedures and practice under the

Cap 33 and Cap 6. Therefore, even the nature of objection taken by the learned Counsel for Appellant objecting admissibility of the document produced by PW1, was not backed by the regulation above. This is because the learned Counsel was busy and working 19 hard to ensure that crucial documents to the determination of the real question in controversy, is not received, by way of importing practice and procedures under Cap 33 and Cap 6, which the above regulation relaxed its applicability in determining admissibility of documents at the Tribunal. Therefore, the learned Chairperson was justified to receive exhibit P8 at the later stage after it was produced by PW2. Equally the Tribunal was justified to rely on it in determining the issue before it. Ground number four, the learned Counsel for Appellant submitted that the Respondent never claimed for the construction costs to the tune of TZS 3,000,000. To my view, this argument is misleading, at paragraph eight roman three, on reliefs claimed, the Respondent pleaded for refund of TZS 4,000,000, which the same amount was pleaded at paragraph 6(A)(i). Seemingly the learned Counsel for Appellant was diluting this reliefs with the wordings appearing at paragraph 8(iii) where the Respondent pleaded as pending tenancy plus damages. Even if is taken that a sum of TZS 4,000,000 pleaded at paragraph 8(iii) did not meant for costs for

construction as alleged by the learned Counsel for Appellant, but still the award of the Tribunal is taken care and protected by the general relief at paragraph 8(v) where the Respondent had pleaded for any reliefs the Tribunal deemed fit and just to grant. Therefore, this ground is dismissed for want of merit. 20 Ground number five, the learned Counsel for Appellant submitted that "Mkataba wa UpangajT (exhibit P8), its contents has no any element of a valid lease agreement rather a mere construction acknowledgement agreement. The said exhibit P8 is titled "mkataba wa upangaji" At the preceding four lines from the bottom, it reads, I quote, ataishi kwenye nyumba hiyo kwa muda wa miaka Tisa (9) na mkataba huu utaanza rasmi Tarehe 1/1/2013 na kuisha Tarehe 1/12/2021z Therefore, the argument of the learned Counsel for Appellant is based on his own opinion which is not supported by exhibit P8. Exhibit P8 had express terms regarding leasing the demised property to the Respondent for a tenure of nine years ending on 1/12/2021, which nevertheless, was frustrated prematurely by the Appellant. Ground number six, the learned Counsel for Appellant submitted that looking from pages 11 to 14 of the impugned judgment, nowhere the learned Chairperson neither evaluated nor analyzed the evidence and testimony of the Appellant. To my opinion, this argument was rather on general complaint

and lamentation. The learned Counsel for Appellant was unable to pin point even a single piece of evidence or testimony adduced or tendered by the Appellant which was not considered in the impugned judgment. Therefore, on the face of it, this ground was unworthy for or deserved no consideration. But for the sake 21 of argument, at page twelve of the impugned judgment extreme bottom paragraph, the Tribunal considered a defence by the Appellant who dispelled the tenancy agreement on the ground that the family was not involved, and the Tribunal rejected such defence when was determining on issue number one. At page thirteen of the impugned judgment the Tribunal when deliberating on issue number two, ruled that the Appellant had no prove if she served the Respondent with a notice for vacant possession; the Appellant had no valid court order at the time of evicting the Respondent nor security placed to guard the properties of the Respondent post eviction; the Appellant had no evidence to prove the legality of the eviction she carried out. In that way, the Tribunal ruled that the evidence of the Respondent was heavier than that of the Appellant. In fact, there was no any tenable defence tendered by the Appellant, which suggest that she dashed to carry out the illegal and unlawful eviction in disregard even of the advise given to her by the matrimonial court in exhibit Pl dated

8/3/2019, at page six, final verdict, I quote, 'Aidha kwa kuwa nyumba hiyo sasa itakuwa ni mail ya Mdai, Mdai atataklwa kukabidhiwa mikataba ya mpangaj! huyo wa Frem na aihakiki na endapo atakubaliana na Mkataba huo unaoishia 2021 basi mpangaj! huyo ataendelea kuishi hapo had! muda ufike endapo ataona kwamba Mkataba huo sio halali kwakuwa Mdai atingia makuba/iano hayo pasipo kushinikiza 22 (sic) yeye basi afungue Shauri ia Madai Mahakamani au Baraza la Ardhi' In the judgment of the Kimara Ward Tribunal dated 26/09/2019 Shauri Na. 52 of 2019, exhibit P2, where the Appellant sued the Respondent for vacant possession of the suit property, the Ward Tribunal ruled, 'Hivyo mmiiiki haiaii wa Fremu hiyo kwa sasa ni Bibi Cecilia Gasper Massawe mpaka hapo Mkataba wake utakapoisha tarehe 1/12/2021' It appears the Appellant lost patience and perseverance or endurance, to wait for just a period of twenty-six months being a grace period for expiration of exhibit P8, and out of wrong advice opted to carry out an illegal and unlawful eviction, which now is for it. In that regard, the decision of the Tribunal is upheld. The appeal is dismissed on its entirety. The Appellant is ordered to foot all costs