ocr CIVIL REVISION NO

IN THE HIGH COURT OF TANZANIA TEMEKE HIGH COURT SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL REVISION NO. 4 OF 2023 (Originating from Civil Review No. 02 of2023 in the District Court of Temeke at Temeke) MARY JAMES NGAHYOMA................................................................ APPLICANT VERSUS RAYMOND DAVID BAGENDA....................................................... RESPONDENT RULING Date of last order: 15/07/2024 Date of Ruling: 09/08/2024 OMARI, J. This Application is brought under section 44(1) (a) and (b) of the Magistrate's Courts Act, Cap 11 R.E 2019 (the MCA) and section 79 (l)(b) and (e) of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC). In the Chamber Summons the Applicant is beseeching this court for orders inter alia that this honourable court be pleased to call for and examine the records of proceedings of the District Court of Temeke at Temeke in Civil Review No. 2 of 2023 for the purpose of satisfying itself as to the correctness and propriety Page 1 of 33 of the Ruling and Drawn Order dated 17 July, 2023 delivered by Hon. A.H. Mbadjo-SRM. The Chamber Summons is supported by the Affidavit of Roman S.L. Masumbuko who is duly instructed and authorized by the Applicant. In the said Affidavit, the deponent states that the parties herein were husband and. wife having contracted a marriage on 04 November, 1995. During the subsistence of the said marriage, the two acquired various matrimonial properties and were also blessed with one child. Mr. Masumbuko further deposed that in 2005 the two agreed and arranged for the Applicant to go to the United States of America (USA), a trip that led to her enrolment and study of a degree programme with the support of the Respondent. While studying the Applicant used to return home to her family and was partaking in family development which led to the acquisition of movable and Immovable properties. He went on to depose that in 2016, the Applicant was via email served with a decree of divorce issued by the District Court of Temeke in Matrimonial Cause No. 4 of 2016 which was issued in the absence of the Applicant. The said decree annulled the parties' marriage. According to Mr. Masumbuko the said proceedings were never conducted as the Page 2 of 33 Respondent forged the documents including the certificate of marriage reconciliation. The Applicant vide Civil Application No. 158 of 2018 sought to be allowed to file an Application for Review against the expa/tejudgment out of time. The same was granted. And, on 4 June, 2019 the District Court granted the Application. Further counsel stated that after the order for setting aside the ex parte judgment, Matrimonial Cause No. 4 of 2016 was heard inter parte on 9 February, 2023 by the District Court of Temeke whereby it dissolved the marriage between the parties, granted a decree of divorce and divided the couple's matrimonial properties. Later on, the Applicant discovered that the Respondent had already sold some of the matrimonial properties that were granted to her. This, counsel describes as an act of deceit as the Respondent was aware that the properties were sold before the court's order. Furthermore, having found some errors apparent on the face of the record in the judgment and decree of the district court in Matrimonial Cause No. 4 of 2015 the Applicant preferred an Application for Review in the form of Civil Review No. 02 of 2023. The said Application was dismissed. This is what led to the present Application for Revision. The Applicant is postulating nine grounds upon which it should be granted. These are: Page 3 of 33 i. The district court exercised the jurisdiction it never had as the matter was never referred to a conciliation board. ii. That the decision of the district court holding that the Applicant never fulfilled the conditions for the court to review its earlier decision is tainted with illegalities as it clear fs/cjon the record that the Applicant successfully established all conditions governing review. ill. That the decision of the district court is tainted with material illegalities for failure to consider that the Applicant successfully established a new fact which could not be produced during hearing of the Matrimonial Cause as the Respondent disposed some of the properties awarded to the Applicant before delivery of judgment. iv. That the decision of the district court dismissing the Applicant's third ground of review without giving reason is tainted with illegalities for failure to Afford the Applicant a constitutional right to be heard. v. That the district court erred in law by failing to entertain the Applicants fourth ground of Review and dismissed it while there was an apparent error on the face of the record by holding that the properties awarded to the Respondent (the Applicant herein) are Page 4 of 33 not matrimonial ones after also holding that, the Respondent did not dispute the same to be matrimonial properties nor did he provide proof of contribution of the same to prove that they are not matrimonial properties. vi. That the district court exercised its jurisdiction wrongly by dismissing the Applicant's fifth ground of appeal (sic) while there was an apparent error on the face of the record as it awarded the Respondent all the properties situated in Dar es Salaam without any consideration to the Applicant, being a woman and the one with the child by awarding few properties located upcountry. vii. That the decision of the district court holding that since the parties never lived happily ever and that there were misunderstandings thus properties were not acquired out of joint efforts is tainted with material irregularities as it is clear on record that the parties lived happily until 2015 where the Respondent petitioned for divorce and all properties were acquired during subsistence of the marriage until when the district court dissolved it. viii. That the decision of the district court is tainted with illegalities for being contrary to the laws. Page 5 of 33 ix. That the district court has failed to exercise the jurisdiction so vested by dismissing the Applicant's grounds of review without paying regard to the fact that there was an apparent error on the face of the record, illegalities and mistakes. To conclude his deposition, Mr. Masumbuko stated that the Application brings up serious issues of illegalities and material irregularities of the proceedings likely to result in a failure of justice and it is in the interest of justice that the Application be granted. The Respondent vehemently contested the Application vide his Counter Affidavit calling for strict proof of everything that the Applicant was alleging. At the hearing of this Application, Mr. Roman S.L Masumbuko represented the Applicant and Messrs. Frank Milanzi and Deogratius Mwarabu represented the Respondent, all are learned advocates. By consent of the parties, the matter was disposed of by way of written submission. A scheduling order was entered and the parties complied. In support of the Application, Mr. Masumbuko gave a brief background of the matter and then embarked on an elucidation of the grounds as they are stated in paragraph 10 of the Affidavit. On the first ground which concerns Page 6 of 33 the lack of jurisdiction by the trial court as the matter had no prior reference to the conciliation board counsel reiterated the provisions of section 101 of the Law of Marriage Act, Cap 29 R.E 2019 (the LMA) which is couched in mandatory terms. Furthermore, counsel referred to section 106(2) of the LMA which reinforces the mandatory requirement. Counsel argued that there was no certificate on record to accompany the Petition in Matrimonial Cause No. 04 of 2015 which basically raises the issue of jurisdiction. And, no certificate was tendered during trial to prove that the said requirement was complied with in addition to the fact that the Applicant never took part in any proceedings before a Marriage Conciliation Board. Additionally, the marriage was contracted in Kinondoni while the Petition was lodged in Temeke. According to Mr. Masumbuko, all of this vitiates the trial court's jurisdiction and the question of jurisdiction can be raised at any time. He cited the Court of Appeal's decision in Patrick William Magubo v. Lilian Peter Kitali, Civil Appeal No. 41 of 2019 where in an akin situation the Court of Appeal held the trial court had no jurisdiction. Counsel invited this court to be bound by the cited decision and thus, find that the district court had no jurisdiction, consequently quash its proceedings. Page 7 of 33 Next counsel jointly submitted on the second and third grounds. He stated that an application for review is governed by section 78 (1) (b) and Order XLII of the CPC, the provisions provide the grounds which a court should entertain. Counsel argued further that the law allows an Applicant who has not preferred an appeal to file a review therefore requiring one to file an appeal if there is an issue of fact is a misconception. According to Mr. Masumbuko, the Applicant had established all the conditions governing review in Civil Review No. 2 of 2023. That is, the discovery of a new fact that the Respondent sold matrimonial properties during the pendency of Matrimonial Cause No. 4 of 2015. Since the Applicant had shown that the said properties were listed in the proceedings and attached evidence that they were sold then the court should have ordered a setting aside of the judgment and a retrial of the division of the properties. He cited the case of Mapalala v. British Broadcasting Cooperation [2000]lEA 132 where the Court of Appeal restated the conditions for granting an application for review and argued that the Applicant successfully fulfilled the conditions. He concluded on this ground by praying that this Application be granted. The next ground is listed as ground number four and concerns the district court dismissing the Applicant's third ground of review without giving Page 8 of 33 reasons. Counsel argued that the denial of the right to be heard vitiates proceedings in addition to being an abrogation of the right enshrined in Article 13(6) (b) of the Constitution of Tanzania. He also relied on the case of Abbas Sherally and Another v. Abdul S.H.M Fazalboy, Civil Application No. 33 of 20.02 which was cited in the case of Danny Shasha v. Samson Masoro and Others, Civil Appeal No. 298 of 2020 which explained the importance of the right of a party to be heard and effect of violation of the said right. Counsel argued that by the district court dismissing the third ground of review without giving reasons the district court denied the Applicant's right to be heard. He concluded that this ground has merit thus the decision of the district court should be quashed. The fifth ground of the Application concerns the dismissal of the fourth ground of review while the was an apparent error on the record because the court held the properties awarded to the respondent were not matrimonial properties. This, according to Mr. Masumbuko is after it also held that the Respondent did not dispute the same to be matrimonial properties nor did he provide proof of contribution to prove they were not matrimonial properties. Counsel argued further that when dividing matrimonial properties, the court has to take into consideration the contribution of each Page 9 of 33 party. He contended that contribution need not be material or monetary, it can be in the form of matrimonial obligations, work or intangible considerations such as love and affection as it was established in the case of Tumaini M. Simonga v. Leonia Tumaini Balenga,Civil Appeal No. 117 of 2022. Counsel contended further that no proof was adduced by the Respondent that the properties were solely his yet the trial court, which according to him took a biased and traditional view by requiring the woman to prove contribution while not requiring the same for the man. Mr. Masumbuko argued that the Applicant clearly testified that the properties were acquired during subsistence of the marriage which was dissolved on 09 February, 2023. Therefore, the trial court should not have only considered the extent of contribution of the Applicant only, which in his view influenced the way the decision was done in a manner that was unfair and unreasonable. He thus prayed for this ground of revision to be found with merit and upheld in order to do justice to the woman. The next ground concerns the dismissal of the fifth ground of review while there was an apparent error on the record as the court awarded all the properties situated in Dar es Salaam to the Respondent while the Applicant Page 10 of 33 got those in upcountry. Counsel prayed for this court to find this ground of revision as meritorious. The seventh ground also concerns properties whereby the court awarded properties without consideration of the Applicant who is the parent with custody of the couple's only child. Counsel reiterated what he had already submitted in the sixth ground then went on to explain that the division by the trial court infers that the Applicant only contributed to the properties outside Dar es Salaam while all the properties are matrimonial properties and the Applicant contributed to their acquisition. He prayed that the decision of the district court be set aside to allow fair distribution of the matrimonial assets. Submitting on the eighth ground of review which centres on material irregularities in the trial court's decision to the effect that the parties could not acquire properties through their joint efforts amidst misunderstandings. Counsel argued that since the Petition was filed in 2015 the properties were acquired before then. That means, they were acquired during the subsistence of the marriage. In the absence of evidence that the parties never lived happily the trial court should not have held as such. The Applicant successfully demonstrated that she had performed her duties as a wife and Page 11 of 33 various businesses for the family development and this was not disputed by the Respondent. Thus, it is wrong to deny her the share of matrimonial properties because they did not live happily after 2015. Complaining that the trial court punished the Applicant while it was actually the Respondent who was responsible for the break down of the marriage counsel prayed for this court to set aside the decision of the trial court and hold that the Applicant is entitled to a share of the matrimonial properties acquired up to 2015. The next ground of the revision is centred on the decision of the district court being tainted with illegalities for being contrary to the law. Counsel argued that the decision is tainted with illegalities for it is contrary to the law governing matrimonial proceedings as well as the principles governing review. The district court entertained a matrimonial proceeding contrary to section 101 of the LMA therefore the proceedings are a nullity and deserve to be quashed. He also argued that giving the Respondents all the properties situated in Dar es Salaam is an illegality. Mr. Masumbuko further argued that the district court's decision is also contrary to the principles governing review as the Applicant had successfully established the conditions for review therefore it was wrong for the trial court to assume that the Applicant ought to only file an appeal while there were new facts that came to the knowledge Page 12 of 33 of the Applicant after division of matrimonial property had been done. He went on to explain that the law allows the aggrieved party to file for review if she has not preferred an appeal as per Order XLH Rule 1(a) of the CPC. In the counsel's view, the trial court was obligated to consider the grounds of review and determine them, it therefore erred by refusing to do so. The last ground on which counsel submitted is that the district court failed to exercise its jurisdiction by dismissing the grounds of review without due regard to the fact that there was an apparent error on the face of the record, illegalities and mistakes. Counsel submitted that section 78(1) (c) of the CPC empowers the district court to review where a person is aggrieved by a decree or order from which an appeal is allowed by the code but from which no appeal has been preferred. Moreover, Order XLII of the CPC empowers the district court to review its own decision. The district court failed to do this in Civil Review No. 4 of 2023 in spite of the grounds to do so being well established failure to determine any ground of review amounts to an error on the record according to counsel. He concluded his submission in chief by praying that the Application be granted with costs on the basis of the reasons advanced. Page 13 of 33 When it was their turn, Messrs. Milanzi and Mwarabu also began with an introduction and background. On the first ground, counsel submitted that the Respondent referred the dispute to a Marriage Conciliatory Board which is the same one that the Applicant referred to, after which she abandoned the proceedings and went abroad. The Board according to counsel heard the Respondent in the absence of the Applicant who did not attend despite being informed and issued a certificate. According to counsel the said certificate was tendered and admitted into evidence as Exhibit P3 in Matrimonial Cause No. 4 of 2015 thus the allegation that it does not exist is misleading and an afterthought for it was never raised in Matrimonial Cause No. 4 of 2015 or Civil Review No. 2 of 2023. As regards the second and third grounds, counsel commenced by submitting that the Applicant's counsel was asked to produce evidence of disposition and failed. He then segued to the issue of Review by referring to the Court of Appeal decision in Equador Limited v. National Development Cooperation, Civil Application No. 388/01 of 2019 in which the Court stated review is limited in scope. Mr. Milanzi argued further that the Applicant had failed to establish the grounds to warrant a review as per section 78 and Order XLII of the CPC. According to him, the Applicant filed a review as a Page 14 of 33 backdoor method to re-argue the case she lost. Moreover, she had failed to establish the alleged new fact. On the fourth ground which is anchored on denial of the right to be heard Mr. Milanzi submitted that the Applicant was not deprived of the right to be heard during the hearing of Matrimonial Cause No. 4 of 2015 and in Civil Review No. 2 of 2023. He further argued that the stated grounds that is the second to the fifth ground, the district court observed that they were grounds for appeal rather than grounds for review. Arguing on the fifth ground of the Application counsel submitted that the Applicant failed to prove her contribution towards the acquisition of the properties that is why the court could not entertain the ground. Further, counsel stated that the Applicant failed to prove how the said properties were jointly acquired and what her contribution was as per section 114(2) of the LMA and or section 114(3) of the LMA. On the sixth ground, counsel argued that the district court awarded matrimonial properties to the Applicant despite that she contributed nothing towards the acquisition and having deserted her marriage since 2000 thus she was neither in Tanzania or contributed to the acquisition of the Page 15 of 33 properties. Counsel explained further that it was the Applicant who got the matrimonial home that the Respondent built out of all the other properties while the Respondent was left with properties that were determined as not matrimonial properties. Messrs. Milanzi and Mwarabu argued against the seventh ground stating that the parties never lived happily until 2015 as the Applicant deserted her marriage since 2000 where allegedly she got married to someone else. It is counsels' contention that the Applicant got more than she deserved. They went on argue that it was the Applicant who initiated matrimonial proceedings by referring the dispute to a Marriage Conciliation Board and then abandoned the process. They argued further that the two were separated since 1999 whereby the Applicant resides in the USA but the Respondent did not claim any properties there when he initiated Matrimonial Cause No. 4 of 2015. Submitting on the eighth ground counsel reiterated what they submitted against the first ground and emphasized that it is an afterthought. And, as regards the last ground counsel argued that the Applicant failed to convince the district court that she had grounds worthy of deciding in her favour as she presented grounds of appeal and not review. This led to the district Page 16 of 33 court's decision that the Applicant failed to meet the requirements provided for under section 78 and Order XLII of the CPC. Counsel then gave narration of what transpired, the Applicant had previously filed Misc. Civil Application No. 32 of 2017 seeking revision but the said Application was struck out then she filed Misc. Civil Application No. 490 of 2017 which was also struck out, thus, according to counsel this Application is another attempt by the Applicant to abuse the court's process. They concluded that the Application should be dismissed to its entirety with costs. In his rejoinder, Mr. Masumbuko went through the grounds as submitted by the Respondent's counsel. As regards the first ground, counsel reiterated that the Applicant never took part in any conciliation board proceedings and if the certificate is annexed then it is not valid as it misses the Applicant's signature and is older than 6 months hence does not comply with section 101 of the LMA. He went on to distinguish the Equador Limited v. National Development Cooperation (supra) that Messrs. Milanzi and Mwarabu cited in their submission against the second and third grounds stating that the case is not applicable in the present case as the Applicant in that case unsuccessfully raised the grounds which did not fit the grounds for review. He argued that his client raised viable grounds in Civil Review No. 2 Page 17 of 33 of 2023. He went on to point out that in the cited case the law applicable was Rule 66 of the Court of Appeal Rules 2009 which is not applicable in the district court. Mr. Masumbuko went on to argue that his submission on the fourth ground stands as the Applicant's third ground of review was dismissed without giving any reason thus, the district court's decision is tainted with illegalities for failure to avail the Applicant the right to be heard as the court should have gone through all the grounds. He relied on the case of Joseph Ndyamukama (Administrator of the Estate of the late Gratian Ndyamukama) v. N.I.C Bank Tanzania Ltd. and two Others, where the Court of Appeal stressed that each issue needs to be resolved. As regards the fifth ground counsel argued that Messrs. Milanzi and Mwarabu missed the point and reiterated his submission refuting the Respondent's false contention of desertion and that the Applicant married another person and stating that the said allegation is from the bar as counsel tried to bring evidence in submission contrary to the Court Appeal decisions in the cases of Rosemary Stella Chambejaro v. David Kitundu Jairo, Civil Reference No. 6 of 2018 and The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government and 11 Others, Civil Reference No. 6 of 2018. Furthermore, Page 18 of 33 counsel re-joined stating that the issue of jurisdiction can be raised at any stage of the proceedings as was held in the cases of Gem and Rock Ventures Company Ltd. v. Yona Hamis Mvutah, Civil Reference No. 01 of 2010 and Charles Julius Rakambura v. Isaac Ntwa Mwakajila and Another, Civil Appeal No, 2 of 1998. He then concluded with the last ground whereby he reiterated his submission in chief and prayed for the Application to be granted. Having considered the parties' Affidavits, the available record and the submissions extensively so that context is set and had; the only issue for this court's determination is whether the Application for Revision is meritorious and if so what is the way forward. However, before doing so I would like to clarify that what is before me is an Application for Review of the record of the proceedings of the District Court of Temeke at Temeke in Civil Review No. 02 of 2023 for the purpose of satisfying myself as to the correctness, legality and propriety of the Ruling and Drawn Order dated 17 July,2023.1 find it pertinent to highlight this fact because counsel for both parties have in a manner of sorts transcended beyond this ask; going into the proceedings of Matrimonial Cause No. 04 of 2015. Therefore, is shall limit myself to what the Applicant herein sought this court to do. To be able to achieve this, it is Page 19 of 33 my considered view that for me to do that I have to tread along what it is that am supposed to revise, that is Civil Review No. 02 of 2023. To further elucidate, the Applicant in Civil Review No. 02 of 2023 was seeking the district court to review its own judgment on the following five grounds: i. That there is discovery of new fact, which could not be produced during hearing as it has come to the knowledge of the Applicant that, the Respondent has sold some of the matrimonial properties right before the trial court awarded them to the Applicant and delivery of judgment. ii. That the trial court made an apparent error on the face of the record by ruling that since the parties never lived happily ever and there has been misunderstanding thus some of the properties were not acquired out of the joint efforts where as it is on the record parties lived happily, until 2015 where the Respondent filed divorce proceedings and all properties were acquired during subsistence of their marriage. iii. That the trial court made an apparent error on record by an omission to make a finding that the property subject of the division were acquired after the parties' marriage while Page 20 of 33 acknowledging that the marriage was dissolved on 9th February, 2023. iv. That the trial court made an apparent error on the face of the record by holding that the properties awarded to the Respondent (Petitioner herein) are not matrimonial ones after also holding that the Respondent herein did not dispute the same to be matrimonial properties nor did he provide proof of contribution of the same to prove that they are not matrimonial properties. v. That the trial court made apparent error on the face of the record by awarding the Respondent all properties situate in DSM without any consideration to the Applicant, being a woman and the one with their child, by awarding her few properties located upcountry. It is on the basis of those grounds that she is beseeched the district court to set aside its judgment and decree. After considering the parties submission for and against the grounds for the review learned district magistrate commenced her Ruling wih a discussion on instances where a court can review its decision with a reference to the case of Equador Limited v. National Development Cooperation Page 21 of 33 (supra) and that of Karim Kiara v. The Republic, Criminal Application No. 4 of 2007. She quoted extensively the Court of Appeal's observation in the Karim Kiara v. The Republic (supra) case, which for purposes of clarity I also wish to replicated as follows: "The law on applications for review is now well settled. A review is by no means an appeal in disguise whereby erroneous decision is reheard and corrected. In a proper functioning legal system, litigation must have finality, thus the Latin maxim "debet esse finis Htium". This is a matter of public policy. The principle underlying the review Is that the court would have not acted as it had if all the circumstances had been known. Therefore, review would be carried out when and where it is apparent that- "First, there is a manifest error on the face of the record which resulted in a miscarriage ofjustice. The applicant would therefore be required to prove very clearly that there is a manifest error apparent on the face of the record. He will have to prove further, that such an error resulted in injustice (see Dr. Aman Walid Kaborou v. Attorney Genera! & Another - Civil Application No. 70 o fl999 - unreported). Second, the decision was obtained by fraud. Third, the applicant was wrongly deprived the opportunity to be heard. Fourth, the court acted withoutjurisdiction. In dealing with a review, the court has Inherent jurisdiction to recall its judgment in order to give effect to Its manifest Intention on to what clearly Page 22 of 33 would have been the intention of the court had some matter not been inadvertently omitted" (Emphasis supplied) The above authority sets the criteria for a court to review its own decision. After the extensive quote from the Karim Kiara v. The Republic {supra) case, the learned magistrate proceeded to determine the Application that was before her, stating that the conditions stated in the case of Karim Kiara v. The Republic {supra) were unfulfilled. She observed that the issue of fraud was neither pleaded in the Application nor was it stated during the hearing. As for the right to be heard, she observed that the record does not support the allegation that the Applicant was deprived of the right to be heard in Matrimonial Cause No. 04 of 2014. This is so because she was present and was also represented by an advocate in addition to which she presented witnesses and exhibits. She also went on to state that it decided Matrimonial Cause No. 04 of 2014 the district court was seized with jurisdiction to do so; therefore, jurisdiction is not among the issues. This left the ground of there being an error apparent on the face of the record due to discovery of the new fact which if they were known before, the court could not have acted as such. To elucidate on this the learned district court magistrate sought assistance from Mulla, Indian Civil Procedure Code, 14th Page 23 of 33 Edition pages 2335-36 and the case of African Marble Company Limited (AMC) v. Tanzania Saruji Coorporation (TSC), Civil Application No. 132 of 2005 both of which state that an error on the face of the record must be such that as can be seen, that is, an obvious and patent mistake not one to be established by long drawn processes. To this end, she observed that the alleged new fact was not supported by any evidence and concluded that the district court could not interfere with its decision as there is no reasonable justification to do so, then dismissed the first ground. The district court magistrate went on to state that the second to the fifth grounds (that were preferred by the Applicant) are not grounds for review but rather they are grounds of appeal. She went on to state as follows: "Z am saying so as all tiie grounds challenge the distribution of the matrimonial properties and reasons advanced by this court. In my view that has to be dealt with (sic) the appellate court. The reason being that there is no error apparent on the face of the record with regard to the division ofmatrimonialproperties done by this court so as to warrant this court to review its decision with regard to the distribution of matrimonial properties among the parties. Ground 2, 3,4 and 5 are found to be devoid of merits hence dismissed. Consequently, this court holds that, the Page 24 of 33 Application is without merits and dismissed." (Emphasis supplied) At the risk of being repetitive and reproducing what is readily available on the record I have opted to go through the Ruling of the district court which is what has brought the Applicant before this court; she is seeking for it to be revised by this court. I have gone through the record and like the district court I would like to commence with a brief elucidation on the circumstances that warrant revision of a decision. However, before doing so, I would like to go back to the Karim Kiara v. The Republic {supra} that was referred by the district court. In the said case, in addition to what the learned district magistrate quoted the Court of Appeal further observed that: "Although this Court held in Tanzania Transcontinental Co. Ltd v. Design Partnership Ltd (Civil Application No. 62 of 1996) that the list of grounds for review is not exhaustive, it did observe further in the same case, that- 'We need emphasize however, that the court will not readily extend the list of circumstances for review, the idea being that the court's power of review ought to be exercised sparingly and only in the most deserving cases, bearing in mind the demand ofpublic policy for finality of litigation and for certainty of the law as declared by the highest Court of the land.' In the instant application, as stated earlier, the applicant has not shown, in our view, any of the four grounds Page 25 of 33 for review enumerated above. His nine grounds presented before this Court are nothing but grounds of what would appear to be another appeal against the decision of this Court delivered on 2fd June 2007. This should not be allowed since it amounts to an appeal in disguise..., "(Emphasis Supplied) Once again, the Court of Appeal is emphasising that Review is not an appeal in disguise. This was also the view of the Court of Appeal of East Africa in the case of Lakhamshi Brothers v. R. Raja, Civil Application No. 6 of 1966 in which it was held that: "In a review the court does not sit on appeal against its own judgment in the same proceedings. In a review, the Court has inherent Jurisdiction to recall its Judgment in order to give effect to its manifest intention on to what clearly would have been the Intention of the Court had some matter not been inadvertently omitted." (Emphasis supplied) As already stated the Applicant is seeking this court to revise the decision of the district court on the grounds already enumerated. This court is empowered by law with revisional jurisdiction as provided for in the MCA and the CPC. However, section 79 of the CPC distinguishes between appeal and revision. For clarity, the section provides: Page 26 of 33 "The High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears: -a) To have exercisedjurisdiction vested in it by law; or b) To have failed to exercise jurisdictions so vested; orc) To have acted in the exercise of itsjurisdictions illegally or with materia! irregularity, the High Court may make such order in the case as it thinks fit" (Emphasis supplied) It is clear from the above section, that revision is exercised only where there is no right to appeal. This court may only exercise its revisional jurisdiction when the decision of the trial court or subordinate court cannot be appealed against as a matter of right; or cannot be accessed and the aggrieved person has provided sufficient reason for not opting to appeal. Furthermore, a court when exercising revisional powers only determines propriety of records and proper application of laws and does not determine evidence adduced at trial. Therefore, on one hand the illegalities, irregularities, incorrectness or inappropriateness of the proceedings or decision of the trial court need to be the centre of the application while the Applicant also needs to answer the question as to why revision and not appeal. This is so because revision is not an alternative to appealing, these are not interchangeable remedies or procedures. In the case of Israel Mwakalabeya v. Ibrahim Page 27 of 33 Mwaijamba, Misc. Civil Application No.21 of 1991 this court stated the following: "The right to invoke the Court’s power of revision is not an alternative to appealing. Where the order complained against is appealable, the court will not use its revisionai powers, for the right to appeal is a remedy open to the aggrieved party. Even where the time for appealing has expired, a party has a remedy of applying to appeal out of time" The above principle was stated by the Court of Appeal in its decision in the case of Tanzania Telecommunications Co. Ltd and 3 Others v. TRI Telecommunications Tanzania Ltd, Civil Revision No. 62 of 2006, wherein it quoted the decision of Hallais Pro-Chemie v. Wella A.G. [1996] TLR (CAT) 266 where the Court of Appeal had this to say: "Except under exceptional circumstances, a party to proceedings In the High Court cannot Invoke the revisionaijurisdiction of the Court as an alternative to the appellate jurisdiction of the Court" In the present Application, the Applicant's counsel albeit with a lot of energy and eloquence of a passionate practitioner failed to explain why the Applicant is seeking for this court to invoke its revisionai jurisdiction after being unsuccessful in Civil Review No. 02 of 2023. The Applicant had a right to Page 28 of 33 appeal against the said decision if she was dissatisfied, this right is provided for under Order XL Rule 1 (v) of the CPC which provides: "An appeal shall He from the following orders under the provisions of section 74, namely- (v) an order under rule 4 of Order XUI granting an application for review." Having been aggrieved with the decision of the district court in Civil Review No. 02 of 2023 the Applicant could have appealed; in the said appeal explain and give the grounds adduced in this Application and or as was stated by the learned district magistrate the grounds adduced for the review. Mr. Masumbuko has not given a sufficient reason for their choice of avenue, nor has the Affidavit stipulated that the Applicant has no right to appeal or why is it that he thought this was the appropriate avenue. Just as a review is not an alternative to or a backdoor appeal the same applies to a revision. This was made clear by the Court of Appeal in the case of Isdore Leka Shirima and Catherine R. Barong v. The Public Service Social Security Fund (as a successor of PSPF, PPF, LAPF and GEPF) and 3 Others, Civil Application 151 of 2016, that revision should not be an alternative to an Appeal. Page 29 of 33 While the Applicant's advocate seems to think that review is an alternative to an appeal and by necessary implication of him filing this Application that Revision is also an alternative to an appeal this is not the case. The Court of Appeal has clearly stated that Revisional powers should not be exercised where the Applicant has other avenues for remedy; see Modest Joseph Temba v. Bakari Selemani Simba and Chiku Zuberi Salum (as joint administrators of the estate of the deceased Ashura Kongoro) and Another, Civil Application No. 233/17 of 2019 and Golden Palm Limited v. Cosmos Properties Limited, Civil Application 561/01 of 2019. Being aggrieved with the district court's refusal to review its decision as sought, the Applicant herein albeit being clearly informed by the Ruling of the district court that the first ground of review did not have merit and the rest of the grounds are not grounds for review rather they are grounds for appeal. I shall now briefly look at the reasons that the Applicant has given for this Application, if anything for good measure. To begin with, the third, fifth, sixth and seventh grounds are seeking to challenge the distribution of the matrimonial properties as was done by the district court in Matrimonial Cause No. 04 of 2015 so in my view they are as were described by the trial court grounds for appealing that decision rather than grounds of revision as Page 30 of 33 brought to this court. They therefore fail to support the Applicant's prayers. For the fourth ground, Mr. Masumbuko is contending that the act of the trial magistrate not canvassing the second, third, fourth and fifth grounds for the review and not giving reasons for the same his client's right to be heard was violated by this act. However, as already demonstrated the magistrate in her ruling gave reasons as to why she dismissed the second, third, fourth and fifth grounds. Once again, if she was dissatisfied with the reasons given by the magistrate the proper avenue to pursue, is as I have already stated would been to file an appeal against that decision. The eighth and ninth grounds are also hinged on the fact that the Applicant is dissatisfied with the decision of the district court rejecting and consequently dismissing her application for review of its decision. This, in my view is appealable as per Order XL Rule 1 (v) of the CPC and there being no reasonable explanation why the Applicant chose not to appeal and instead brought this Application these two grounds also suffer the same fate as the ones above. What remains is the first ground, this is based on jurisdiction of the trial court to hear the Matrimonial Cause No. 04 of 2015 for the matter was allegedly never referred to a conciliation board this can be coupled with the second Page 31 of 33 ground that the Applicant had established that the decision is tainted with illegalities therefore had fulfilled the conditions for review. I agree with Mr. Masumbuko's argument that the question of jurisdiction is one of law and can be raised at any time during proceedings. However, I also see sense in Messrs. Milanzi and Mwarabu's argument that this is an afterthought that came to light in Civil Review No.02 of 2023. Much as I would agree that the issue of jurisdiction is fundamental and takes precedence over every other legal issue, I would think it also has to be raised in an appropriate avenue. I do not intend to seem lax with a legal matter as important as jurisdiction. I am treading on this thorny path for two reasons, the first is that what is before me is an Application to revise the decision of the district court in Civil Review No.02 of 2023 and the second is that after the delivery of the ruling of the said Application, the Applicant had an automatic right of appeal and the issue of jurisdiction, if any, would also be determined at the appeal. Additionally, as per Israel Mwakalabeya v. Ibrahim Mwaijamba {supra) case even if she were out of time then she would have applied for extension of time; more so because she is alleging an illegality. Without any justification she choose this route. This means, in addition to choosing the wrong avenue, the learned advocate failed give sufficient reasons supporting Page 32 of 33 this Application for revision instead of appealing against the decision of the trial court. For those reasons, this Application for Revision is misconceived, misplaced and lacks merit, the same is dismissed. The Application arises from a matrimonial dispute I therefore order that each party bears their own costs. It is so ordered. A.A. OMARI JUDGE 09/08/2024 Ruling delivered and dated 09th day of August, 2024. A.A. OMARI JUDGE 09/08/2023 Page 33 of 33