KISSIMBA JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA PC CIVIL APPEAL NO. 12242 OF 2024 (Arising from Civil Appeal No. 000003218 of 2024 in the District Court of Misungwi at Misungwi and from Civil Case No. 23 of 2023 in the Bukumbi Primary Court at Misungwi) NEEMA KISSIMBA…………………………………………………………APPELLANT

VERSUS JOYCE KWACHA @OMOLO……………………………………………RESPONDENT

JUDGMENT 12th & 29th November, 2024 KAMANA, J. This matter started with a loan of TZS 8,500,000/- issued by Joyce Kwacha @Omolo, the respondent, to Neema Kissimba’s husband. Neema Kissimba now appears before this court as the appellant. The loan was secured by a collateral which was the house located at Nyamwilingwa Hamlet, Nyang’homango within Misungwi District. The said house was placed as collateral by Said Seif, the applicant’s husband. Said Seif did not heed his promise to repay the loan on the agreed date. This led the respondent to institute Civil Case No. 34 of 2023 in the Bukumbi Primary Court against Said Seif. Being a gentleman, Said Seif did not waste the precious time of the court and that of the respondent as he admitted to owe the respondent TZS 8,500,000/-. 1 Following that, he was ordered by the court to repay the loan under the conditions stated in the judgment. It was unfortunate that despite the order of the court, Said Seif failed to repay the loan. This precipitated the respondent to institute an application for execution of the order issued by the court in the Bukumbi Primary Court. The application was christened as Application Case No. 23 of 2023. After hearing the parties, the court appointed the auctioneer who was ordered to auction the house placed as collateral. The order did not amuse the appellant who filed an objection proceeding in the Bukumbi

Primary Court. In her objection, the appellant contended that the house that was placed as collateral by her husband is a matrimonial home hence it could not be placed as collateral without her consent. She added that the house was also placed as collateral for a loan issued by a bank. Given that, he implored the executing court to release such property. The executing court found the appellant’s arguments baseless. Aggrieved, the appellant knocked on the doors of the Misungwi District Court. After the hearing, the District Court dismissed the appeal for devoid of merits. That did not please her, hence this appeal. I heard the appeal by way of written submissions. However, when I was in the course of drafting judgment, it occurred to my mind that 2 there was a need for the parties to address me on whether there was a proper appeal as the District Court did not have jurisdiction to entertain an appeal arising from the objection proceedings. Ms. Diana Daniel, learned Counsel for the appellant, appeared and contended that after the decision of the executing court in the objection proceedings, the appellant had to pursue his right by preferring an appeal against the decision of the executing court. She held the view that after her appeal was dismissed by the District Court, the only recourse was to file an appeal before this court. Neither the respondent nor his advocate entered an

appearance. As a matter of principle, objection proceedings are meant to allow a person who was not a party to the suit that led to the execution to establish his rights on the property that is subject to execution. Under those proceedings, an objector is required to establish his interest in all or part of the property that is subject to execution. In that case, the executing court is under the obligation to investigate the claims advanced by the objecting party as to his interest in the property subject to execution. When the executing court is satisfied that the objector has established his interest in the property that is subject to execution, the property or part of it, as the case may be, is released from execution. 3 When it finds the opposite, the property is subjected to execution. In case the objector is not satisfied, the recourse available to him is not to appeal but to institute a suit to a proper court for the determination of his rights. See: Simon Ngatunga v. Benson Ng’ambi, Civil Revision No. 4 of 2023-HC (Unreported). Reverting to the appeal at hand, when the appellant’s objection in the executing court failed, the proper recourse was to file a fresh suit and not to appeal. That being the case, the appeal before the District Court was filed in error and it is unfortunate that the District Court did not discover that it had no jurisdiction to entertain it. In the final analysis, I invoke my revisional powers by quashing and setting aside the proceedings, judgment and orders of the District Court for want of jurisdiction. Given that, this appeal has no legs to stand and the same suffers dismissal. Each party is to bear its costs. It is so ordered. Right To Appeal Explained. DATED at MWANZA this 29th November, 2024.

KS KAMANA

JUDGE 4