20090529 TZHC Arusha

.,/' IN THE HIGH COURT OF TANZANIA AT ARUSHA. {PC) CIVIL APPEAL N0.19 OF 2004 <Originating Monduli District court Civil Appal 19 of 2002 Mto wa Mbu Primary court civ:il case 34 of 2002) MARIAM HAMISI ...................................................................APPELLANT VERSUS SAKINA HUSSEIN .............................. ! . . . . . . . . . . . . . . . . . . . . . . . ,. . . . . . . . . . . . . RESPONDENT <Appeal from the RM's court Arusha) {G.M.J. MAIMBA PDM) Dated 4u, June 2003 In Civil case No.34 of 2002 30th November, 2007 - 29 th May 2009 JUDGMENT R. SHEIKH,J. This is an appeal from the decision of Monduli District court in the exercise of its appellate jurisdiction, upholding the decision of 1 Mto wa Mbu Primary court primary court Civil case No.34 of 2002. The petition of Appeal raises two grounds of appeal. The first ground reads as follows:- 1. That, the judgment of the District court in the exercise of its appellate jurisdiction, having flouted the mandatory statutory requirement under section 13 (2) of the Magistrates' Act No.2 of 1984, is wholly a nullity at law. In his written submission in support of ground aforesaid Mr.Makange, learned counsel for the appellant submitted that the judgement of the appellate District court was improperly written in the Swahili language contrary to the mandatory provisions of section 13(2) of the Magistrates' courts act No.2 of 1984. He ' contended that the judgment is null and void due to non- compliance with the law and ought to be quashed and set aside The appeal is strongly resisted by the respondent who maintained that the decision of the District court cannot be faulted. In response to ground are, the respondent basically accepted that the mere fact that the judgment was written _in kiswahili does not make it a nullity, and that the court has the discretion to diverts the first appellate court to translate the judgment into English. 2 Indeed the provisions of section 13(2) of the Magistrates· courts act No. 2 of 1984 require that the record and judgment of a District court and a resident magistrate's court be written in English. Clearly the judgment of the District court which is written in the Kiswahili language has contravened! the Mandatory Provisions of section 13(2> of the Magistrate's courts Act. 1 had pondered whether 1 should direct the District court t,b translate the judgment into English as urged by the respondent. However it is my view that this is a fatal defects renderings the judgment a nullity. It cannot be hired by translation. The judgment and the proceedings of the District court are accordingly hereby: quashed and set aside. I hereby order that the matter be remitted to the District court and that Civil Appeal No.19 of 2002 be heard de nova before another magistrate of competent jurisdiction. In the event the appeal is I1ereby allowed. Each party will bear her own costs. R. Sheikh JlJDGE 02/03/2009 3 l' • Date:- 29/05/2009 Coram;- F.S.K. Mutungi Dr. Appellant:- absent I For the appellant:- Mr. makange - absent Respondent:- present in person B/C:- Priscila court;- Judgment read this 29/05/2009 in court in the presence of the I Respondent but the absence of c:ounsel Makange for appellant i i through with notice of absence dully noted. -----· DISTRICT ISTRAR 29/05/2009 I Right of appeal explained ARUSHA. 29/05/2009 4