national housing corporation vs omari shamba amini others 2005 tzhc 282 14 march 2005

TN -THE HIGH -COURT"0*''TAN ZANIA at‘ mqshi (DC) CIVIL APPEAij N O ? 30 OF 2003 (ORG. RM'S COURT MOSHI CIVIL CASE NO.67/9^) NATIONAL HOUSING CORPORATION ..... APPELLANT VERSUS 1. OMARI SHAMBA AMINI 2. ONESMO MREMA 3. CAPTAIN A. A. SWAI THOMAS E. TEMU .RESPONDENTS 5. PRI 6CILA KIMAMBO 6* LALIT SHAH 7. OMARI ZIMB17E & 300 OTHERS J U D G M E N T JUNDU, J. The Appellant, the National Housing Corporation is the landlord'’for the Respondents over premises leased by the Appellant to the Respondents based in Moshi* In the trial court, the Respondents had sued the Appellant over increases of rent alleging inter-alia that they were arbitrary, discri­ minatory and exhorbitant and that they violated the directive of the Board of Directors of the Appellant produced and admitted during the trial as Exhibit P.** in the said court* At the end of the trial, the trial magistrate, in his Judgement had made the following findings, that:- n I must now come to the conclusion of the case. It is my finding that the rates of rent should be as those in Exhibit P.*t that is 2.b0/= m 3 low density, 180/ = m 3 medium, 50/ = m 3 high. I think and order that the status of the premises should be reviewed in terms of size, use and area and premises of equal status should have similar rents. There is a f Board of Directors of the Appellant d<bes not state that the residential premises in town centre or within CBD are regarded as high density premises and therefore-entitle-their-tenants to pay shs* 50/- per square metre. I have carefully considered the submissior? of both parties with e 1 reference to the evidenc|on record and in particular what is contained in Exhibit rtP*+K , the directive of the Board of Directors of the Appellant as regards rates of rental increases that were to be effective from 1st of June,199^* However, Exhibit pA- does not show in which category (high, medium or low density) are the residential premises in the central business district (CBD) or Municipal Centre in Moshi belong to nor does the said Exhibit iip V ,; make any reference as to which rate of rent is applicable to the said residential houses* In his evidence adduced at the trial court, PW1 said as followsi- ---- all the houses in the town centre is called high ---- In residential houses there is no CBD which means Central Business District* However, here in Moshi NHC applied CBD for residential houses houses and charged shs* 180/ = per square metre instead of shs* 50/=*u f On the other hand, DW1 in his evidence adduced at the trial court said as followsj- According to the said directive rent rates were set according to the size, use and area (coming),, Zoning, here refers to high density areas, medium and low* High density residential area was to be shs* 50/- per square metre in municipalities,. Medium density residential areas to be shs. 180/ = per square metre in municipalities low density residential area to be shs*24o/- per square metre in Municipalities1*. ............* /1 Q The Appellant was aggrieved by the decision of the trial magistrate and had appeale'd to this court listing the following grounds of appeal in her memorandum of appealv- 1. That the learned Resident magistrate having ifcsatisfied himself that there were only seven plaintiffs in the case grossly erred in law and in fact in holding that legal deficiency on the case had no i:any consequence". 20 That the learned trial magistrate grossly erred in law and in fact in failing to dismiss the suit before him I which' was purpotedly a representative suit while it was pot suid he infact satisfied himself that it was not. 3* That the learned trial magistrate grossly erred in law and in fact in holding that High density, medium density and low density premises are those occupying areas of not exceeding 500 m 3 ; not exceeding 1000 m 3 ; and exceeding 1000 m3 respectively while the Appellant vehemently denied that assertion and furthermore having said that the sizes of premises were unknown, the waning v/as improper and status of premises were mixed up. That the learned trial magistrate having declared that the rents demanded were those in Exh. P.A- erred in law not directing that the Respondents should pay such rates from the date of Exhibit P,*t- in 199^» 5* That the learned trial magistrate grossly erred in law and in fact in declaring the rents demanded by the Appellant arbitrary and discriminatory. 6. That the learned trial magistrate grossly erred in law and in fact in holding that he had set l quidelines to be followed for determining new rents to apply to all tenants within Moshi Municipality while he has no such powers to- make orders' contrary to law establishing the appellant corporation. On 10th November,2003 this court had allowed the parties to argue the appeal by way of written submissions and had set the deadline dates for filing the same by each party and the matter was fixed for mention on 3/3/2004. On 3rd March, 2004, both counsel informed this court that the parties in this appeal were negotiating an out of court settlement and on 7th June, 200^ the parties filed a memorandum of understanding containing agreed and disagreed issues. Cfri 25th June, 200^ by consent of the parties, this court made an order that the appeal is partly settled in agreed issues listed in paragraph A of the memorandum of understanding. The said agreed issues are:- (a) That both parties agree that rental rates be adjusted according to the aectsurcr.TE5n±s verified by the parties and approved by the Board of Directors of the Appellant in 199^ which axe specified in Ekhibit i:p V ,s. (b) That both parties agree that rent for business premises in the Central Business District (CBD) be Shs. k00/= per square metre. (c) That both parties agree that rental rates for the Uru Flats be S h s .50/- per square metre, being the rates applicable to High Density Areas. (d) That both parties agree that rental rates for the Uru Estate be shs. 180/= per square metre being the rates applicable to Medium Density Areas; and (e) That both parties agree that rental rates for the Ismailia Area be shs. 180/= per square metre being the rates applicable to Medium Density Area, This Pourt* iri the said order of 25th June, 200*+ stated that this appeal was still unresolved in disagreed matters listed in paragraph B of the memorandum of understanding for which the parties called upon this court to resolve them. The said disagreed issues are:- '(1) The residential houses in Town Centre. V/hile the Respondents maintain that dn view of Exhibit iip V i the proper rental rate is shs„ SO/- per square metre, the Appellant maintanins that the proper rates is that for medium density that is shs. 180/- per square metre. j (2) The 30 residential houses along Arusha Road. V/hile the Respondent maintain that each of them is occupying a space of 500 square meters of such plot the proper rental rate payable is that for high density in line with the Tov/n Planning Space Standards Regulations 1997i the Appellant maintains that the proper -rental rate is that for medium density, that is shs, 180/- per squre metre, the space recognised by the Municipal Council. (3) Status of Commercia l premises along Bocia Road, Old Moshi Road, Rengua Lane and^Rindi lane? While the Respondent maintain that these premises arelocated on the outside of the Central Business District and that the proper rental rate is shs. 2k0/~ per square metre, the Appellant is merely promising'-to look at possibi­ lity of reducing rent payable ---- after making asse­ ssment on accounts of individual tenants, (k) EFFECTIVE DATE; The parties have failed to agree on the effective date of the rent increases. The Appellant insists that the rent increase be from 199^1 The Respondent have asked that the effective date be either the date of completion of the verification of (muaeuremeirts or the months of January,200^. As- a last, alternative they asked that the i effective date be that of delivery of the judgement of the trial court. Before going into the above matters, it is important to be aware of certain points which emerged in the lower court. First, it is the Board of Directors of the Appellant which has power or mandate to fix rents for the premises occupied by her tenants including the Respondents# The said power is statutory and is laid down under Section 11 of the National Housing Corporation Act No. 2 of 1990 ^cl by virtue of Section 5 (1) of the said Act it is the Board of Directors which is empowered to carry out the functions and manage the business of the Appellant. So the rates of rents stated in Exhibit ':p 4 u tendered by the Respondents in the lower court were fixed by the Board o£ IJtroo^fccrs of the Appellant. Secondly, the rent fixed by the Appellant should be economic rent as stated by Section 12 of the mentioned Act* It was the finding of the trial magi*»;.r:.. strate that the rents which were being paid by the Respondents before 199** were no longer economic rents and werebound to be changed and that the Respondents sought to show that the rates of rents in Exhibit P*+ were the appropriate ones but the officials of the Appellant in Moshi Branch did not abide to the directives of the Board of Directors of the Appellent and were Surcharging them# Thirdly, the Appellant fixes the rates of rents depending whether the premises concerned are situated in a low density, medium density or high density or Central Business District (CBD) area according to the evidence adduced by the Appellant witnesses in the lower court* Fourthly, it was the evidence of the Appellant witnesses that it is the Town planning Authorities which determine whether the area is low density, medium density high density or CBD, This is what is called as zoning. Further, in fixing the rates of rents, the Appellant also takes into consideration the economic position of the particular area apart from whether the premises are located in a low density, medium density or high density area according to the evidence led by the Appellant witnesses in the lower court. Having said the above matters, now let us go back to the four disagreed issues between the parties. This court had ordered the parties to argue the said issues by way of written submissions and both of them have fully cnmplxed with the said order of this court. I hereby sincerely ccnaaend both counsel for the due diligence shown and their veryi-ucid submissions. However, both counsel were temptatea to bring in evidence which was not adduced or tendered in the lower court in tlv.'ir bid to persuade this this court to resolve the said issues either way. Such evidence or infor­ mation might be useful in their effort to settle the matter out of court but this court has strictly to a b i d e itself to the evidence on record in ) resolving disagreed issues in this appeal* This court is not sitting as a trial court but as a first appellate court in this appeal. The first disagreed issue in the memorandum o f ’ understanding between the parties is what is proper rate of rent for the residential houses in the town centre in Moshi. This area is what is known as the Central Business District or CBD in short. It is said that the Respondents that in view of Exhibit ?iP*f‘ l, the proper rental rate is shs. 50/- per square • metre while the Appellant maintains that the proper rate is that for medium density (in Exhibit P**), that is shs. 180/- per squre metre. Mr, Urio, the learned counsel in his submission for the Appellant has contended that the residential houses within the town centre are said to be within the Central Business District and that according to the Town Planning Authorities are classified as being within a medium density area for which the rate of rent being charged by the Appellant is Shs. 180/= per square m»tre# On the other hand, Mr. Jonathan, the learned counsel for the Respondents in his ' - -5 submission has contended that the submission of Mr. Urio that the rate of j rents for the residential premises within the Central Business District - are those, applicable to medium density area is based on no evidence and even if there were such evidence it would be a departure from the Directive of the Board of Directors of the Appellant in Exhibit P<A as it makes no t reference whatsoever to residential houses within the Central Business District. For the said reason, Mr. Jonathan submitted that for purposes of fixing rent the proper category for the residential houses within CBD need to be determined. Otherwise, the Respondents in view of Exhibit '••P*tu they maintain that the proper rental rate for the residential houses within CBD is sh. 50/- per square metre, the one applicable .to a high density area. However, in his rejoinder submission,%Mr. Urio, the learned counsel for the Appellant has vehemently opposed'the R e s p o n d e n t s sub­ mission by stating that Exhibit ::PV-‘ , fiat is the directive cf the Board of Directors of the Appellant does not state that the residential premise..? in town centre or within CBD are regarded as high density premises and therefore -entitle-their tenants to pay shs. 50/- per square metrei I have carefully considered the submission of both parties with '■’ e ' reference to the evideftcfon record and in particular what is contained in Exhibit rtp 4 s:, the directive of the Board of Directors of the Appellant as regards rates of rental increases that were to be effective from 1st of June, 199** • However, Exhibit p4 does not show in which category (high, medium or low density) are the residential premises in the central business district (CBD) or Municipal Centre in Moshi belong to nor does the said Exhibit i!p V >; make any reference as to which rate of rent is applicable to the said residential houses* In his evidence adduced at the trial court, PW1 said as foll o w si~ ;r——all the houses in the town centre is called high ——- In residential houses there is no CBD which means Central Business District* Hov/ever, here in Moshi NHC applied CBD for residential houses houses and charged shs* 180/ = per square metre instead of shs, 50/=.n .5 Cn the other hand, DW1 in his evidence adduced at the trial court said as follows According to the said directive rent rates were set according to the size, use and area (coming)* Zoning. here refers to high density areac, medium and low. High density residential area was to be shs* 50/- per square metre in municipalities. Medium density residential areas to be shs. 180/ = per square metre in municipalities low density residential area to be shs.2^0/- per square metre in Municipalities1*. DW*2 in his evidence-adduced at the lower court stated as*follows:- ... v ISWe fconclucted a research upon noting that there were some justified complaints* We made some rectifications# Uru Estate,had been ranked, high density area while it was medium^density — The same was done,with Arusha Road estates five blocks — We failed to conduct our "* '4 * . research at the town_ centre^ Because tenants could not let us, They said the matter was in court‘ : ( emphasis mine)* It is clear to m e (with the above evidence, that the Respondents position is that all the residential houses in the town centre are in high density area and there^is no Central Business District but the Appellant branch in Moshi had applied CBD for the residential houses and changed shs.. 18 o /~ per squere metre applied to medium, density area instead of shs, 50/- applied to the high density area. Cn the other hand, the evidence on the part of the Appellant shows that? they had w o r k e d on such complains in some cases and made rectifications but when it came to residential houses in the town centre (CBD) they were.denied access to conduct their research by the tenants on the ground that^the matter was already in court, * * In m y considered view, this court sitting as an appellate court cannot allocate a status to the said residential premises because that is the function of the town planning authority, in our case the Moshi Municipal authorities nor can this court in the absence of known status to the premises decide which rate of rent in ejfchibit c;p V a is applicable to the said residential premises. In ray further considered view, matters of rent must be certain and known to those affected, they cannot be left to speculation* It is up to the parties and I do hereby so direct to have the status,of the said residential premises determined either by ri/- referefice^o the'Master Plan or by involving the competent authority in our case, the Moshi Municipal authorities* That done, then the appropriate rate of rent as found in Exhibit :ip V l* should be applied from the effe­ ctive date as determined in this Judgement. The second issue concerns what is applicable rate of rent for the 30 residential houses along Arusha Road. The Respondents have maintaned that as each of the said houses is occupying a space aroa of 500 square metre of such plot the proper rental rate payable is that for high density in line with the Town Planning S p a c e Standards Regulations, 1997# On the other hand, the Appellant has maintained that the proper rental rateapplicable for the said residential houses is that for medium density that is shs* 180/- per square metre, the space recognised by the Municipal Council. Mr. Urio, the learned counsel for the Appellant has contended in his submission that the said 30 residential premises along Arusha Road are within medium density area in accordance with the evidence of DW.1 and DW.2 at the trial court and should therefore be charged s h s 0 180/- per square metre. Notably, the Moshi branch, of the Appellant had charged these houses shs. 120 /- per square metre instead of shs. 180/- per square matter and the Appellant witnesses had maintained that the reduction was an internal matter within the Appellant corporation* Mr Urio has contended further in his submission that the said houses cannot be charged as if they are within high density area as insisted, by the Respondents. Cta the other hand, Mr. Jonathan, the learned counsel for the Respondents in his sub­ mission has contended that the said residential houses just like the neighbouring residential houses are within the category of high density area in accordance with Exhibit ^pV-. He contended further in his sub­ mission that the Moshi Branch of the Appellant corporation had put the rental rate at shs, 120 /**;per square mentre for the said residential ' ' -i -'•*» f ' ' ^ * " i,.. . premises which is not provided for in Exhibit irPH'' because according to the evidence of DW2 at the trial court the.said premises were ;;being too close to ;the hi5gh, density a r easu which in his consistened view it was an admission that the proper category for the said houses is high density and not medium density. .7/.•■ \ ^ 1 ’; In my considered view, the issues to be addressed in respect of the above named premises are first in which category (high, medium or low) do these p r e m i s e s ‘ fall in and based on the reply to the said issue, therf ffisi.-; ■■■ . " " -V ^ “" '• • ' ' • M}the next issue to be addressed at is what is the applicable rate of ,'^f^nt over the said premises. Mr. Urio, the learned counsel for the V■ -V*Y Appellant has contended in his submission that the said premises are within medium density area while Mr. Jonathan, the learned counsel for the Respondents has contended in his submission that thq. said premisesr fa l l ’ within high density area. In my considered view, going b y the ' "'V-•< - •t>v — <3: evidence of DW2 on-record whereby he testified in the lower court that ' these premises axe medium density not high'1', I am persuaded the '/ ■ ' " -.V ' -4 said premises are within medium density area. Further, this is fortified' • even’further by his (DW.2) evidence an record that *• — The Arusha Road five.blocks, it was decided that they were too close to the high density :.s- area. S ^ ^ h c u g h ^ the 'blo^cks^are medium density, the rate was l e s s ----- u (emphas/s. qiine). Hie said evidence has been referred to by both counsel in their submission^rhereby Mr» Urio relied on the said evidence ,, A . t'o show t h a t !<the said premises are within medium density area and Mr* \ Jonathan who re'iied on the said evidence to show that the premises were ■. r . within high density, area. Therefore, based on the evidence of DV.2, , I find and hold., that the 30 residential houses along the Arusha Road axe within medium density area. W-V. The other issue cn the said premises is what rate of rent is applicable over the said premises. The appellant has maintained t h a t $it is Shs.l 8o/*- 4'' per square metre which is the rate specified in Exhibit "pit,‘for m s d i u m ^ . 'cr' density area but the Respondents vide their- learned counsel Mr. Jonathan insisted that the rate is shs. 50/-* per square metre for a high density area because the evidence of DW.2 at the trial court showed that the said premises were charged shs* 120 /- per square metre instead of the rate applicable(Tshs. 180/- per square metre)~ to medium density area because the said premises were too close to the high density area though they were within medium density area. The Appellant has v'ehementhly contended in her submission vide her learned counsel Mr, Urio that according to the evidence of DW.2 at the trial court that the reduction of rate ofireiat from shs. 180/- per square metre to( shs. 120/- per square metre by the Moshi branch of the Appellant was an internal matter. In my considered view, the said reduction referred as an internal matter was a direct violtit-ion ':h of the directive (Exhibit P^f) of the Board of Directors of the Appellant by the Moshi branch of the said Appellant. However, it is the evidence of PW.1 on record that had the said branch of the Appellant applied the guidelines of the Board of Directors in Exhibit P . t h e Respondents would have no complains. It means the Respondents are agreeable to the rates of rent; stated in Exhibit r,P*+:';. So since I have found and held that the said premises are not high density area but medium density area, the rate of rent applicable is not shs. 50/- per square metre but shs. 180/- per square metre as fixed by the Board of Directors of the Appellant in Exhibit :'P4',:* Further, it was the finding of the trial magistrate in his Judgement that the applicable rates of rent are those stated in exhibit *'p^!: which was produced and tendered in court by the Respondents themselves. ...........................* 1 V - The third disagreed issue between the parties is on status of - commercial-premises along Boma Road, Old Moshi Road, Rengua' Lane and Rindi Lane* In the memorandum of understanding filed by the parties in this court it was assented that while the Respondents have maintained that these premises are located on the outside of the Central Business District (CBD) and that the proper rental rate is shs. 2H0/- p e r square metre, the Appellant is merely promising to look at possibility of reducing rent payable after making assessment on accounts of individual tenants* Mr. Urio, the learned counsel for the Appellant in his submission has contended that the said commercial, premises are located within the Central Business District (CBD) and have the status of medium density and haye to be charged the rate of shs. ^ 00/= per square metre as shown in Exhibit tendered in the trial court whereas Mr. Jonathan the learned counsel for the Respondents has contended in his submission that business in this area has slackened very considerebly such that the said cbmmercial premises do not qualify to be part of the Central Business District hence the rate of rent of shs. 2h0/- per square metre is the appropriate one for the said premises in view of the low rating of Kilimanjaro Region in' economic perfomance. Now, it is a fact in terms of Exhibit “ p V ,: tendered in the lower court, and which the parties have agreed to be bound, the rate of rent for commercial premises within CBD is set at Shs. 400/= per square metre. In my considered view, what is advocated by the Respondents is for the Appellant to relegate the above named commercial premises away from commercial premises within the Central Business District on the ground that business in the said area has slackened considerably on poor economic pepf<2rraffl2lC once of the Kilimanjaro Region, Based on this reason the Responder o • o o / 1 5 are of the view that the rate of rent for these commercial premises be shs. ?- 0/- per square metre instead of shs. k00/= per square metre. Can this court relegate the said commercial premises as moved by the Respondents? It is evidence on record by DW.1 adduced at the trial court that in fixing rent, the economic factor of a particular municipality is considered and it is also the law under Section 12 (1) of the National Housing Corporation 1990 that in fixing rent, the Board of Directors of the Appellant Corporation has to take into account the economic factor* It is therefore, my considered view, that the appropriate mandate for taking care of the economic factor is crested within the Board of Directors of the Appellant Corporation. If the Respondents were of the firm view that the business in the said premises had considerably slackened due to poor economic purformance of the Kilimanjaro Region such that the rate of rent applicable for the said premises should not be that applicable to commercial premises within the CBD, then the Respondents had to submit that matter to the Board of Directors of the Appellant Corporation for consideration and determination. However, if the Respondents wished to completely rclagate the status of the said commercial premises away from the Central Business District, then the Respondents had to submit their proposals to the Moshi Municipal authorities which is the proper authority for consideration and determination of the said issue bepause under the law it is town i planning authorities as evident from the evidence on rccord that have power to allocate status (high or medium}: or low density or CBD) to ai area. As it stands, though the Appellant Board of Directors has m a n d a t e to fix rates of rent or rent applicable to the said, premises, in-my considered view it has j&ot power to relegate th©.status of the said premises because that is a function which is bestowod upon the Moshi Municipal planning authorities as a town planning authority under the law* To conclude the above issue on the mentioned various premises, I find and hold that the rate of rent applicable for the said premises is shs. kOO/zz per square metre, the rate applicable to commercial premises within the CBD as shown in Exhibit !*P*fl* The last disagreed issue between the parties contained in the memorandum of understanding which this court is requested to resolve is about the operative date of the rate of rents mentioned in Exhibit •'P^1'1, that is in the directive of the Board of Directors of the Appellant* It is contended that though the trial magistrate had held that the applicable rate of rents are those stated in the said Exhibit ‘ did not give or state the operative date for the said rates of rents. In the said memorandum and in his submission, the Appellant-has prayed that the rent increases in Exhibit-F*t be effective from 199^ while the Respondents have prayed that the effective date be either the date of completion of measurement in February, 2003 or the month of January, 20C& or alternatively the date of delivery of the Judgement of the trial court* Mro Jonathan, the learned c’ ounsel for the Respondents in his submission further added that in the further alternative, the operative date should be the date of Judgement of this court but in m y considered view, this is not contained in the memorandum of understanding on the part of disagreed issues to be resolved by this court, Mr, Urio, the learned counsel for the Appellant in his submission has vehemently contended that the new rent rates be effective from 199*+ because that is the date the same became - operative to all the tenants throughout the country having been fixed by the Board of Directors of the Appellant as shown in Exhibit :'*p m -!! tendered by the Respondents at the trial court and upheld by the trial magistrate in his decision as the rates of rents which the Respondents were bound to pay hence am order by this court to make them pay from 199 ^ would be sound, fair and equitable in the circumstances of this case otherwise an order to make them pay from 2003 or 2004 will be discriminative and unfair against all other tenants in the country who have abided or paying rents stated in exhibit P4 since 199^# Mr. Urio further contended in his submission that after all the trial magistrate had held that there were only seven plaintiffs in the suit in the lower court and that given the long history of the case, the Appellant has greatly been denied of the commercial rates being enjoyed by the private Inrnrilcvrris but subjected to payment of property tax VAT and land rent* On the other hand, Mr. Jonathan, the learned counsel for the Respondents, in his submission has contended that the Appellant cannot pray for an order requiring the Respondents to pay the new rent rates effective 199^ because the Appellant did not make a counter-claim for the said rents -pursuant to Third Amended Plaint filed by the Respondents in the lov/er court instead the Appellant filed new kO cases claiming rents from some of the Respondents, therefore, the Appellant cannot claim the new rates of rent to be retrospectively paid by the Respondents. He further submitted that in the lower court 4 an agreement had beerx*reached between the parties that the ' Respondents continue to pay old rents until the determination of the suit hence they understood that the new rates of rents to be o effective subsquent to the Judgement of the court and not retrospective* He also contended in his submission that in 199^ when the Appellant imposed the new rate of rents on the Respondents, the premises were in a pcthetic ■ * state requiring massive repairs and renovations such that the new rate of "rents were unjustified and that the Respondents having undertaken or meet the expenses of those repairs and renovations to make the premises habitable they should not be *..../i8 required to pay the new itttes of rent retrospectively. Mr. Jonathan, therefore, in his submission has prayed that the new rates of rents be effective from the date of delivery of the judgement of this court or the month of February,2003 when the taking of measurements were completed or the date of delivery of the Judgement of the trial court. On the allegation of payment of taxes by the Appellant, Mr. Jonathan., submitted in his submission that it is untrue because no taxes are payable for unrealised'income. On the allegation of there being only seven (7) plaintiffs to the suit in the lower court, Mr. Jonathan submitted that in its ruling dated 2/ 6/2000 the trial court had held that the Plaint had been properly signed and verified and that it included all the Respondents. In final analysis, Mr. Jonathan prayed that the .order for paying new rental rates should not be given retraction effect and the appeal be dismissed with costs. Mr. Urio, the learned counsel for the Appellant in his rejoinder submission reterated his earlier position that the new rate rates be * effective from 199 ^ because that is the date the same were fixed by the Board of. Derectors of the Appellant and came into force to all the ternaiits throughout the country. As to the alleged agreement for the Respondents to continue to pay old rents until determination of the suit, Mr. Urio replied that was only meant to allow the trial court to determine whether or not the Appellant was entitled to the rent increases it had fixed in the year 199 *+ in exhibit :fP^', it cannot be construed that the effective date was to be at a future date. As to the issue of repairs and renovations raised by Mr. Jonathan in his submission or the process of taking measurement, Mr. Urio submitted that it did not change the effective date of payment and that the Appellant is asking for retrospective payments because the charged being talked actually took place in 199^« As to number of Plaintiffs being seven in the suit in the lower court, Mr. Urio replied in his submission __________ / 1 9 that the point of tfte plaint being properly signed as raised by Mr* Jonathan is not founded in the Judgement of the trial, magistrate and that todate the Respondents did not appeal against the finding of the trial magistrate in his judgement that they were only seven plaintiffs the i n f plaint at the lower court*. He submitted further that the point of there being ^0 cases raised by Mr* Jonathan was irrelevant to this issue of operative date as the said cases were filed in 1998 and not 199^• Mr* Urio finally prayed in his submission that the appeal be allowed with costs taking into account the very huge losses the Appellant is b o u n d to incur should there be a contrary decision. I have carefully considered the submissions of both parties on the issue of operative date of the increases efi.rent in exhibit :;p 4 ‘ :. This issue was not specifically addressed by the parties in their submissions at the lower court after the closure of the case there. However, the trial magistrate had ruled that the applicable rent rates are those found in exhibit :iP*fJ‘ . Can this court supplement the evidence at the lower court given by the parties? In my opinion this court is not sitting as a trial court but an appellate court with the duty of considering and j determining the issue before it with reference to the evidence on record. Mr. Jonathan has strongly advocated that the rate of rent increases should not be given retrospective effect. Mr. Urio on his part has advocated for the rate of rents in exhibit P^f to be effective from 199^ as that is the date they were fixed by the Board of Directors of the Appellant and came into force to all the tenants throughout the country. The trial magistrate having held in his Judgement that the applicable rates of rent are those in Exhibit l;pM*, then when could they be operative if he did not specifically so state in his Judgement? Could they be effective from 199^ as advocated by Mr„ Urio or from the date of the judgement of the trial court or from the date of completion of measurement of the premises in February, 2003? Is there any justifi­ cation to let them not to be effective retrospectively? I have no doubt that Exhibit np*fi: is agreable to the Respondents in its entirety as may be gathered from the evidence on record. PW.1 in his evidence adduced at the trial court stated as follows, t;The Beard of Directors of NHC has the power to set rates of rent* Had the Branch followed the guidelines in the letter signed by Mwakiagi (Exhibit P*0 we vould hava no complaint„w The evidence of PW1 as above stated shows to me that the Respondents are agreable to ;ithe guidelines 11 in Exhibit P^ set by the Board of the Directors of the Appellant. Further, if I were to borrow what is stated in the memorandum of understanding between the parties filed in this court, the parties have agreed that, “ That both parties agree that rental rates be adjusted according to the measurements verified by the parties and apporved by the Board of Directors of the Appellant in 199^ which are specified in Exhibit 'cP^fr1. Therefore, it is clear to me that both parties are agreeable to the contents of exhibit tfp V ; specified by the Board of Directors of the Appellant, As it is evident from the evidence on record, it is the Board of Directors of the Appellant that has the statutory power to fix rates of rent applicable to her tenants under the law. In my considered view, it is the same Board of Directors v/hich has statutory mandate of fixing the effective date of the said rents, as to . it will be a n o n - s t a r t e r f i x rates of rent without fixing their i effective date. Exhibit P*t is very explicit on this point$ it states ;,'Katika Kikao chako cha tarehe 6 Aprili,1994 Bodi ya Vakurugenzi ya Shirika hili iliamua kufanya marekebisho ya viwango vya kodi ya nyumba. Kuanzia tarehe .1 Juni, 199^ viwango vya kodi vinatakiwa kuwa kama ifuata (Underlining is mine) It is clear to me from what is stated i n nthe guideliness; in exhibit P4 that the Board of Directors of the Appellant had exercised its statutory duty to fix rent rentals and at the same time fixed their effective date, that is 1st June, 199^« In my considered view, once it is accepted that in the applicable rates of rents are those stated exhibit P4 as set forth by the Board of Directors of the Appellant, naturally if follows as night follows day- that their effective date remains 1st June, 199^, the date fixed by the said Board of Directors and stated in the said exhibit P4. The two cannot be separated from each other* Once the trial court found that the appropriate rental rates are those contained in Exhibit P4, it included their effective date stated in the said Exhibit P4, The exercise being a statutory power vested in the Board J of Directors of the Appellant, it will be against the spirit of the relevant provisions for the trial court or this court to make the rental rates effective on any other date than the one stated in Exhibit P*4. It cannot be on the date of the Judgement of the trial court because the said Judgment itself is agreeable to the contents of Exhibit p4 which includes the effective date of the said rental rates as 1 st June, 1994* It cannot be on the date of completion measurement of the premises in February,2003 because the said process cannot overtake, the fact that the trial court had already stated and held as fax as 11th February,2003» the date of Judgement, that the applicable * e 0«,/2 2 rental rates arc those in Exhibit :ip V 5 and that holding in ray considered view included the effective date of those rental rates stated in the said exhibit p4 as 1st June ,<199^• In the circumstances, the forceful submission of the Respondents that the rental rates should not be given retrospective effect is not valid1:: because the effective date remains the one stated in Exhibit P*f, that is 1st June, 199*+, the one fixed by the Board of Directors of the Appellant, which in law has the statutory power to do so as is evident from the evidence on record, Mr. Jonathan in a futile attempt submitted that the Appellant could not be entitled to the rental rates effective 199 ^ because he did not put a counter-claim to the Third Amended Plairt. This is not attainable in view of the findings of the trial magistrate in his judgement (p. 7 ) that: “ There is indeed title caus^ for disagreement. The Plaintiff tendered exhibit P^ not as an accademic exercise I bc-lieve. they wanted the court to find the rates indicated therein as the appropriate ones-?. and further that (p,8) f;I must now come to the conclusion of this case* It is my finding that the rates of rent should be as those in exhibit ;:p*t;- that is 2*K)/-m3 low density, 180/-m3 medium, 50/=M^ h i g h”. In my considered view, as I have already stated the contents of exhibit tipZfit apart from the applicable rates of rent, it included the effective date for the same hence if Mr. Jonathan found the same not appropriate he should have appealed against the decision of the trial magistrate* The finding of the trial magistrate entitles the Appellant to the rental rates and the same effective fx^orn 1st June,199^ in terms of what is stated in exhibit P^f which is also agreeable to the Respondents as stated by PW.1 in 1tiis evidence before the lower court. The Appellant is entitled to the rental rents as contained in exhibit r-pM' and the same are effective from the "1st of June, 199^* The Respondents have so to pay. There is another point pursued by Mr. Jonathan in a bid to escape the retrospective effect on the rental rates, that is the premises were in a patheiric state and tnat some of the Respondents had done renovations and repairs on them to make them habitable. In rr.y considered view, the obligation of making the premises in good habitable condition is rested in the Appellant. Therefore, if a tenant undertakes repairs and revonations to the premises on a pretex that the costs thereof are to be offset from rental dues to the Appellant, he should first reach and execute a written agreement with the Appellant before undertaking and executing such repairs and renovations otherwise it would be taken that the tenant undertook and executed such repairs and renovations at his own risk. In the present case the evidence on record does not show that the Respondents alleging that they had undertaken renovations and repairs had executed a written agreement with the Appellant', that the cost involved will be offset from rental dues to the Appellant. Therefore, in my considered view, I do not find this point as a valid point for the rental rates not to be given retrospective effect. After all, the Appellant's surviva^ieponds on rental dues, the latter are the main source which empowers the Appellant to repair and renovate the premises to make them habitable. There was another point on the number of Plaintiffs (Respondents) as found by the trial court. Mr. Urio had submitted that there were only seven plaintiffs (Respondents) as held by the trial magistrate while Mr. Jonathan submitted that in effect there was a ruling by the trial court that the amended plaint was properly verified on behalf of all the Plaintiffs (Respondents) hence it extended beyond the seven Plaintiffs (Respondents). In my considered view, it is a fact that the trial magistrate had held that there were only seven plaintiffs (Respondents) to the suit in the trial court. The holding has not been disturbed by the Respondents in any way. All in all this point is not one of the disagreed issues in the memorandum of understanding required to be resolved by this court-. There was also another point on taxes including land rent property tax and VAT which the parties in this appeal touched. Again this is not one of the disagreed issues in the Memorandum of Understanding required to be resolved by this court., How do I conclude this appeal before me? As I had earlier stated at the beginning that the parties partly settled the appeal on their own as is evident from the Memorandum of Understanding they have filed in this court on agreed and disagreed issues between them* The agreed issues cannot be said to have been resolved in favour of one party so is the appeal on the said issues because the parties have simply concluded an agreement between themselves on the said issues. There is no winner, there is no loser. The disagreed issues in the Memorandum of Understanding which the parties had called upon this court to resolve have to a large extent been resolved in favour of the Appellant, so is the appeal as far as the disagreed issues between the parties are concerned« Though it i can be technically said that the appeal as far as the disagreed issues between the parties are concerned has been resolved in favour of the Appellant, still in the circumstances of this appeal in its entirety thsre is no sole winner a s part of the appeal has been amicably • settled by the parties themselves*’ ' In the upshot, I make no order as to costs. It is so ordered* F ' . A c R* Jundu, Judge, 14/3/2005 Right of Appeal explained* Fo A 0 Ro Jundu, Judge, 14/3/2005 Coram: F. A* Rc Jundu, J* For the Appellant: Mr* Urio, Advocate. For the Respondents: M i 0 Jonathan, Advocate C/C: Mattiku* Courtj_ Judgement delivered in the presence of Mr„ Urio, learned counsel for the Appellant and in the presence of Mr. Jonathan, counsel for the Respondents* Fo A ‘0 Ro '1‘ Jundu 4 -t ! 14/3/2005